*         *N 


«*V 


SKETCH  OF  THE  LAWS 


RELATING  TO 


SLAVERY 


IN  THE  SEVERAL  STATES 


OF  THE 


UNITED  STATES  OF  AMERICA, 


BY  GEORGE  M.  STROUD. 

it 


PHILADELPHIA. 

PUBLISHED  BY  KIMBER  AND  SHARPLESS, 

No.  93  Market  Street. 

/,  Ashmead?  Printu 
1827 


Eastern  District  of  Pennsylvania,  to  ioit  : 

BE  IT  REMEMBERED,  that  on  the  tenth  day  of  October,  in 
L.  S.  £  the  fifty-second  year  of  the  Independence  of  the  United  States  of 
w^3  America,  A.  D.  1827. 

GEORGE  M.  STBOUB,  ESQ.. 

of  the  said  district  hath  deposited  in  this  office  the  title  of  a  book,  the  right 
whereof  he  claims  as  author,  in  the  words  following,  to  wit : 
A  Sketch  of  the  Laws  relating  to  Slavery  in  the  several  States  of  the  United 
States  of  America.     By  George  M.  Stroud. 

In  conformity  to  the  Act  of  the  Congress  of  the  United  States  entitled, 
"An  act  for  the  Encouragement  of  Learning,  by  securing  the  copies  of  maps, 
charts,  and  books,  to  the  authors  and  proprietors  of  such  copies,  during  the 
times  therein  mentioned." — And  also  to  the  act,  entitled,  "  An  act  supple 
mentary  to  an  act,  entitled,  "  An  act  for  the  encouragement  of  learning,  by 
securing  the  copies  of  maps,  charts,  and  books,  to  the  authors  and  proprie 
tors  of  such  copies  during  the  times  therein  mentioned,"  and  extending  the 
benefits  thereof  to  the  arts  of  designing,  engraving,  and  etching  historical 
and  other  prints." 

^D.  CALDWELL, 
Clerk  of  the  Eastern  District  of  Pennsylvania. 


PREFACE. 


THE  state  of  slavery  in  this  country,  so  far  as  it  can  be  ascer 
tained  from  the  laws  of  the  several  independent  sovereignties 
which  belong  to  our  confederacy,  is  the  subject  of  the  following 
sheets.  This  comprises  a  particular  examination  of  the  laws  of 
the  states  of  Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina,  Georgia,  Kentucky,  Tennessee,  Louisiana, 
Mississippi,  Alabama  and  Missouri.  With  respect  to  the  re 
maining  states,  slavery,  in  some,  having  been  abolished,  and  in 
others,  never  tolerated,  a  cursory  notice  of  a  few  of  their  laws, 
chiefly  important  for  the  evidence  which  they  furnish  of  the 
right  of  these  states  to  the  appellation  of  non-slave-holding ',  is 
all  which  the  title  or  object  of  this  work  requires. 

The  District  of  Columbia,  though,  in  this  connexion,  not  pro 
perly  denominated,  a  state,  yet,  from  its  important  character 
in  being  exclusively  within  the  jurisdiction  of  the  Federal  Go 
vernment,  deserves  an  equal  share  of  attention.  It  happens, 
however,  that  this  District  in  regard  to  slavery  as  well  as  many 
other  topics,  is  not  regulated,  integrally,  by  a  code  of  laws  en 
acted  for  the  purpose  by  Congress; — that  body,  having  by  an  act, 
dated  February  27th,  1801,  declared,  that,  the  part  of  the  Dis 
trict  of  Columbia  which  had  been  ceded  to  the  United  States  by 
the  state  of  Virginia,  should  be  governed  by  the  laws  which 
were  then  in  force  in  Virginia,  and  the  other  part,  which  had 
been  ceded  by  the  state  of  Maryland,  should  in  like  manner  be 
governed  by  the  laws  then  in  force  in  Maryland.  But  few  al 
terations  have  been  made  in  the  laws  affecting  the  condition  of 
slaves  in  either  of  the  states  just  named,  since  the  date  of  the 
act  of  congress;  the  quotations,  therefore,  given  from  their  re 
spective  codes,  being  applied  in  conformity  with  the  distinction 


IV 

established  by  the  act  of  congress,  may,  with  but  little  hazard 
of  error,  be  received  as  the  laws  of  the  District  of  Columbia. 

Such  provisions  of  the  Constitution  of  the  United  States,  as 
might  be  fitly  introduced  into  this  sketch,  have  been  added 
in  an  Appendix.  Several  acts  of  congress,  will  be  found  in 
serted  there  also.  These,  however,  are  not  numerous,  since 
from  the  peculiar  relation  which  subsists  between  the  Federal 
Government  and  the  individual  states,  the-former,  except  within 
the  District  of  Columbia  and  the  territories  not  yet  incorpor 
ated  into  the  union,  as  states,  is  restrained  from  the  exercise  of 
legislative  functions  on  all  subjects  of  a  character  exclusively 
municipal. 

The  value  of  a  work  like  the  present,  must  depend,  mainly, 
upon  the  authenticity  of  its  materials.  On  this  point,  but  little, 
if  any,  exception  can  be  justly  taken.  The  most  approved  code, 
of  each  state,  was  sought  for,  and,  in  most  instances,  obtained. 
The  laws  of  Delaware,  Maryland,  Virginia,  Georgia,  Kentucky, 
Louisiana,  Mississippi,  Alabama  and  Missouri,  have  been  cited, 
from  publications  made  under  the  express  sanction  of  the  seve 
ral  legislatures  of  these  states.  The  laws  of  South  Carolina  have 
been  drawn  principally  from  a  source  entitled  to  equal  consi 
deration.  I  mean  the  Digest  by  Judge  Brevard.  This,  how 
ever,  having  been  issued  from  the  press  in  1814,  it  became  ne 
cessary  to  procure  a  work  which  would  indicate  the  changes  ef 
fected  by  the  legislature  since  that  period.  The  second  edition 
of  James7  Digest,  has  been  used  for  this  purpose,  and  though 
the  first  edition  of  this  work  is  stated,  in  Griffith's  Law  Regis 
ter,  to  have  been  imperfectly  executed  and  not  to  deserve  much 
reliance,  yet,  a  second  one  having  been  called  for,  it  seems  fair 
to  presume  that  in  this,  the  errors  of  the  first  have  been  cor 
rected  and  its  defects  supplied. 

For  the  laws  of  North  Carolina,  as  well  as  for  the  larger  por 
tion  of  those  of  Tennessee,  recourse  has  been  had  to  "  Hay- 
wood's  Manual. "  Professedly,  this  work  treats  of  the  laws  of 
North  Carolina  only,  yet,  as  the  territory  which  now  composes 
Tennessee,  was  until  April  2d,  1790,  included  within  the  bounds 
of  the  former  state,  and  subject  to  its  jurisdiction,  it  was  judged 
expedient,  when  the  separation  took  place,  to  provide  that 


the  laws  of  North  Carolina  should  continue  to  be  observed  by 
the  citizens  of  Tennessee,  until  severally  altered  or  repealed  by 
competent  legislative  authority.  By  a  copy,  which  I  possess,  of 
the  laws,  of  this  latter  state,  applicable  to  slaves,  it  does  not  ap 
pear  that  many  such  alterations  or  repeals  have  been  made.  I 
have,  therefore,  in  general,  omitted  to  mention  specifically,  that 
a  particular  law  of  North  Carolina,  is  also  in  force  in  Tennessee, 
but  have  given  the  date  of  such  law,  if  passed  before  April  2d, 
1790,  intending  to  apprize  the  reader,  that  in  every  citation  of 
this  kind,  Tennessee  should  be  classed  with  North  Carolina,  un 
less  the  contrary  be  distinctly  mentioned.  Legislative  enact 
ments  emanating  from  the  territorial  government  which  suc 
ceeded  the  cession  by  North  Carolina,  and  those  also  which  have 
been  made  by  the  state  of  Tennessee,  are  referred  to,  under 
the  name  of  Laws  of  Tennessee,  stating  the  year  in  which 
they  were  enacted,  and  the  chapter  in  which  theymay  be  found. 

In  a  treatise  of  no  greater  extent,  than  that  which  is  here  of 
fered,  it  may  be  thought  unnecessary  to  speak,  in  this  place,  of 
the  plan  which  has  been  observed.  I  allude  to  the  topic,  chiefly, 
to  avail  myself  of  the  opportunity  which  it  affords,  of  acknow 
ledging  my  obligation,  in  this  respect,  to  JAMES  STEPHEN,  ESQ. 
of  London,  to  whose  comprehensive  work,  "  The  Slavery  of 
the  British  West  India,  Colonies  Delineated,"  I  am  also  large 
ly  indebted  for  much  valuable  information.  The  titles  to  the 
chapters  and  sections  into  which  this  sketch  has  been  divided, 
will  be  found  to  correspond,  in  most  instances,  substantially, 
and  in  some,  verbally,  with  those  employed  by  him.  The  rea 
son  of  this  adoption,  will  be  evident,  when  it  is  recollected  that 
the  prominent  features  of  slavery  in  the  British  West  Indies, 
and  in  our  slave-holding  states,  closely  resemble  each  other,  and 
I  could  not  hope  to  excel  the  model  of  so  competent  a  master.  I 
might  also  suggest  as  an  additional  reason,  that  MR.  BARCLAY 
of  Jamaica,  in  the  work  which  he  has  published  as  a  reply  to 
MR.  STEPHEN,  has  pursued  the  same  arrangement.  Fas  esl  ab 
hoste  doceri. 

Having  been  under  the  necessity  of  bringing  together,  the 
laws  of  so  large  a  number  of  independent  states,  it  must  be  ob- 


VI 

vious  thai  considerable  difficulty  existed  in  assigning  to  each 
part  its  proper  place,  and  giving  to  each  its  due  effect,  and  at 
the  same  time,  preserving  the  appearance  of  symmetry  in  the 
whole.  As  the  best  method  of  meeting  this  difficulty,  when 
the  provisions  of  different  codes  on  the  same  point,  were  in  the 
same  language,  or,  as  was  most  commonly  the  case,  the  same  in 
substance  but  not  in  language,  I  have  in  general,  used  a  tran 
script  frome  one  code,  and  having  noted,  in  immediate  connex 
ion,  the  work  from  which  it  was  taken,  have  added,  successive 
ly,  references  to  the  other'codes.  The  words  "similar,"  and, 
"nearly  similar,"  are  sometimes  interposed; — the  purpose  of 
which,  needs  no  explanation.  The  titles  of  the  different  Digests 
being  cited,  seemed  to  me  to  render  a  perpetual  repetition  of 
the  names  of  the  States,  unnecessary.  In  many  occasions,  there 
fore,  these  are  omitted. 

That  the  comments  which  I  have  offered  on  many  of  the  laws, 
might  the  more  readily  be  understood,  and  their  propriety  judg 
ed  of,  I  have,  in  almost  every  quotation  which  has  been  made, 
given  the  exact  words  of  the  law,  omitting  such  only,  as  were 
not  essential  to  the  perception  of  the  legislative  intent. 

Of  the  actual  condition  of  slaves,  this  sketch  does  not  pro- 
fress  to  treat.  In  representative  republics,  however,  like  those 
of  these  United  States,  where  the  popular  voice  so  greatly  in 
fluences  all  political  concerns,  where  the  members  of  the  legisla 
tive  departments  are  dependant  for  their  places  upon  annual 
elections,  the  laws  may  be  safely  regarded  as  constituting  a 
faithful  exposition  of  the  sentiments  of  the  people,  and  as  fur 
nishing,  therefore,  strong  evidence  of  the  practical  enjoyments 
and  privations  of  those  whom  they  are  designed  to  govern.  To 
the  condition  of  the  passive  members  of  the  community,  such 
as  slaves,  this  latter  deduction  is, emphatically, applicable.  I  speak 
of  the  case  of  slaves  generally.  Their  condition  will,  no  doubt, 
in  a  great  degree,  take  its  complexion  from  the  peculiar  disposi 
tion  of  their  respective  masters; — a  consideration  which  operates 
as  muchagainst  as  in  favour  of  the  slave:  for  it  cannot  be  denied, 
that  there  arc  many  persons  but  little  controlled  by  feelings  of 
humanity,  and  less  restrained  by  the  precepts  of  religion,  man}' 
who  "feeling  power,  forget  right." 


Vll 

The  very  existence  of  slavery  is  calculated  to  produce  the 
worst  effects  on  the  temper  and  morals  of  the  masters.  On  this 
point,  and  indeed,  on  the  general  treatment  of  slaves  by  their 
masters,  the  most  decisive  testimony  is  borne,  by  MR.  JEFFER 
SON,  in  his  Notes  on  Virginia.  "  The  whole  commerce  be 
tween  master  and  slave,"  says  he,  "  is  a  perpetual  exercise  of 
the  most  boisterous  passions — the  most  unremitting  despotism 
on  the  one  part,  and  degrading  submissions  on  the  other.  Our 
children  see  this,  and  learn  to  imitate  it;  for  man  is  an  imitative 
animal.  If  a  parent  had  no  other  motive,  either  in  his  own 
philanthropy  or  his  self-love,  for  restraining  the  intemperance 
of  passion  towards  his  slave,  it  should  always  be  a  sufficient  one 
that  his  child  is  present.  But  generally,  it  is  not  sufficient. 
The  parent  storms,  the  child  looks  on,  catches  the  lineaments 
of  wrath)  puts  on  the  same  airs  in  the  circle  of  smaller  slaves, 
gives  a  loose  to  his  worst  passions,  AND  THUS  NURSED,  EDU 
CATED,  AND  DAILY  EXERCISED  IN  TYRANNY,  CANNOT  BUT  BE 
STAMPED  BY  IT,  WITH  ODIOUS  PECULIARITIES." 

Philadelphia,  October  Sth,  1827. 


ADVERTISEMENT. 

The  laws  of  several  of  the  states,  being  contained  in  Digests? 
in  citing  them,  the  names  of  the  compilers  have  heen  generally 
given,  and  not  the  names  of  the  states.  Thus,  the  laws  of 
Georgia  are  cited  from  "Prince's  Digest"  1  vol. ;  the  laws  of 
South  Carolina,  some  from  "JBrevard's  Digest,"  3  vols.  and 
some,  from  "James*  Digest,"  1  vol. ;  the  laws  of  North  Caro 
lina  as  well  as  a  portion  of  those  of  Tennessee,  (as  explained  in 
the  preface  of  this  sketch,)  from  "Hay  wood's  Manual,"  1  vol.; 
the  laws  of  Kentucky,  from  "Littell  fy  Swigert's  Digest,"  2 
vols. ;  the  laws  of  Louisiana,  to  the  year  1816,  from  "Martin's 
Digest,"  3  vols.;  the  laws  of  Pennsylvania  from  "Purdon's 
Digest,"  1  vol.;  the  laws  of  Alabama  from  "Toulmin's  Di 
gest,"  1  vol.  In  Virginia  and  Mississippi,  Revised  Codes 
have  been  prepared,  and  are  cited,  "  Virg.  Rev.  Code  and  Miss. 
Ren.  Code,"  unless'  in  some  instances,  where  the  name  of  the 
state  is  prefixed  to  the  extract  made^  and  Rev.  Code  only  marks 
the  citation.  The  Civil  Code  of  Louisiana  and  the  Code  of 
Practice  adopted  in  the  same  state,  are  cited  by  their  respec 
tive  titles,  and  the  article  and  its  number  given,  but  not  the 
page, — this  being  the  usual  and  most  convenient  mode  of  re 
ference,  as  to  these  codes. 

With  respect  to  the  laws  of  the  other  states,  no  explanation  is 
necessary,  as  the  name  of  the  state  is  used. 


ERRATA. 

Page  121-2.  In  describing  the  tribunal  by  which  slaves  are 
tried  on  criminal  accusations,  in  Tennessee,  I  have  stated,  that 
this  state  was  in  the  year  1793,  a  part  of  North  Carolina,  &c. 
This  is  erroneous,  as  will  appear,  by  the  preface  to  this  sketch, 
in  which  the  proper  date  of  the  separation  is  noted,  and,  of  con 
sequence,  the  remarks  there  made  which  rest  upon  that  hypo 
thesis,  are  inappropriate. 

The  date  of  the  act  of  Tennessee,  as  stated  in  the  text,  is  also 
erroneous.  It  should  be  November  8th,  1819,  instead  of  Octo 
ber  23d,  1813.  A  corresponding  alteration  must  be  made  in 
the  reference. 

Page  128,  line  IQthfrom  the  lop,  instead  of  the  statement, 
that  the  ordinary  tribunal  for  the  trial  of  slaves  in  Tennessee, 
consists  of  but  three  justices  and  freeholders,  it  should  be,  of 
THREE  justices  and  nine  freeholders,  or  slave-holders,  such  an 
alteration  having,  by  an  act  of  November  9th,  1815,  been"  made 
in  the  law  previously  in  force  >%e  Laws  of  Tennessee  of  18199 
rhnp.  1 38. 


LAWS 

RELATING  TO  SLAVERY. 


CHAPTER  I. 

OF  THE  PERSONS  WHO  MAY  BE   HELD  AS  SLAVES,  AND  UPON  WHAT 
AUTHORITY  THEY  ARE  SO  HELD. 

THE  design  of  this  sketch  being  merely  to  furnish  a  connected 
view  of  the  laws  which  relate  to  the  institution  of  slavery  as  it 
exists  among  us,  it  would  be  supererogatory  to  enter  upon  a 
particular  inquiry  into  its  origin.  I  shall  introduce  the  sub 
ject  to  the  reader,  by  ascertaining  what  persons  are  included 
under  the  denomination  of  slaves,  and  upon  what  authority  they 
are  regarded  as  such.  These  propositions  present  but  little 
difficulty;  since  positive  enactments  of  the  several  legislatures 
of  the  slave-holding  states  constitute  the  authority;  and  the  lan 
guage  by  which  they  are  enunciated  is  sufficiently  explicit  to 
prevent  any  misapprehension  of  their  meaning. 

The  earliest  law  which  I  shall  quote  is  taken  from  the  laws 
of  Maryland.  It  is  an  act  of  the  year  1663,  chap.  30,  in  these 
words:  "  All  negroes  or  other  slaves  within  the  province,  and 
all  negroes  and  other  slaves  to  be  hereafter  imported  into  the 
province,  shall  serve  durante  vita;  and  all  children  born  of  any 
negro  or  other  slave,  shall  be  slaves  as  their  fathers  were  for 
the  term  of  their  lives."  Section  2.  "And  forasmuch  as  di 
vers  free-born  English  women,  forgetful  of  their  free  condition 
and  to  the  disgrace  of  our  nation,  do  intermarry  with  negro 
slaves,  by  which  also,  divers  suits  may  arise,  touching  the  issue  of 

2 


10 

such  women,,  and  a  great  damage  doth  befall  the  master  of  such 
negroes,  for  preservation  whereof,  for  deterring  such  free-born 
women  from  such  shameful  matches,  be  it  enacted,  fyc.  That 
whatsoever  free-born  woman  shall  intermarry  with  any  slave, 
from  and  after  the  last  day  of  the  present  assembly,  shall  serve 
the  master  of  such  slave  during  the  life  of  her  husband  ;  and 
that  all  the  issue  of  such  free-born  women,  so  married,  shall 
be  slaves  as  their  FATHERS  were.7' 

This  law  is  remarkable  for  two  particulars:  First,  the  recog 
nition  of  the  common  law  doctrine,  "  partus  sequitur  patrem" 
that  the  offspring  follows  the  condition  of  the  father:  Second, 
the  pur  auter  vie  slavery  to  which  it  subjected  the  white  free- 
born  English  women  who  might  come  within  its  provisions. 
The  number  of  this  new  species  of  slaves  must  have  been  very 
small,  and  as  the  act  had  but  a  short  duration,  it  is  unnecessary 
to  take  further  notice  of  this  branch  of  it.  With  respect  to  the 
offspring  of  such  marriages  consummated  while  the  act  was  in 
force,  as  these  were  made  slaves  for  life;  and  as  an  act  passed 
in  1681,  for  the  purpose  of  repealing  that  of  1663,  contained  an 
express  saving  of  the  rights  acquired  under  the  act  of  1663, 
before  the  date  of  the  repealing  act,  so  far  as  concerned  the 
enslavement  of  the  ivoman  AND  HER  ISSUE,  it  is  not  improbable 
that  some  of  their  descendants  arc  at  the  present  day  in  that 
condition.  * 

*  It  is  certain  several  such  persons  were  held  in  absolute  bondage  until  the 
year  1791,  when  (after  the  lapse  of  more  than  a  century)  it  was  finally  decided 
by  the  highest  court  of  judicature  in  the  state,  that  for  want  of  a  conviction  of  the 
vihite  woman  who  originally  violated  the  law,  her  descendants  were  not  slaves, 
and  could  not  legally  be  retained  as  such.  See  the  case,  Mary  Butler  vs.  Mam 
Craig,  2  Harris  and  M'Henry's  Reports,  214  to  236.  At  a  former  period,  (1770) 
in  a  case  in  which  the  parents  of  the  same  Mary  Butler  were  plaintiffs  and  pe 
titioners  for  freedom,  it  was  adjudged  that  they  were  slaves — their  grandmo 
ther,  a  white  woman,  having  been  married  to  a  negro  slave  in  the  year  1681, 
a  short  time  prior  to  the  repeal  of  the  act  of  1663.  Case  of  William  and  Mary 
Sutler  vs.  Richard  Boardman,  1  Maryland  (Harris  and  M'Henry's)  Reports, 
371  to  385. 

A  statement  of  one  of  the  counsel  for  the  petitioners  in  this  latter  case,  as 
it  serves  to  elucidate  this  anomalous  portion  of  the  history  of  slavery  in  Mary 
land,  is  here  transcribed.  "In  the  year  1676,  the  lord  proprietary  met 
the  assembly  in  person ;  in  1677  he  returned  to  England.,  and  in  1681  he  re- 


11 

The  doctrine  of  "  partus  sequitur  patrem"  obtained  in  the 
province  till  the  year  1699  or  1700,*  when  a  general  revision 
of  the  laws  took  place,  and  the  acts,  in  which  this  doctrine  was 
recognised,  were,  with  many  others,  repealed.  An  interval  of 
about  fifteen  years  appears  to  have  elapsed  without  any  written 
law  on  this  subject;  but,  in  1715,  (chap.  44,  sect.  22,)  the  fol 
lowing  one  was  passed :  "  All  negroes  and  other  slaves  already 
imported  or  hereafter  to  be  imported  into  this  province,  and  all 
children  now  born  or  hereafter  to  be  born  of  such  negroes  and 
slaves,  shall  be  slaves  during  their  natural  lives."  Thus  was 
the  maxim  of  the  civil  law,  "  partus  sequitur  ventrem,"  intro 
duced,  and  the  condition  of  the  mother,  from  that  day  up  to  the 
present  time,  has  continued  to  determine  the  fate  of  the  child. 

This  maxim  of  the  civil  law,  the  genuine  and  degrading  prin 
ciple  of  slavery,  inasmuch  as  it  places  the  slave  upon  a  level  with 
brute  animals,  prevails  universally  among  the  slave-holding 
states.  The  law  of  South  Carolina  may  be  quoted  as  follows: 
"  All  negroes,  Indians,  (free  Indians  in  amity  with  this  govern 
ment,  and  negroes,  mulattoes  and  mestizos,  who  are  now  free, 
excepted,)  mulattoes  or  mestizos,  who  now  are  or  shall  hereafter 
be  in  this  province,  and  all  their  issue  and  offspring  born  or  to 

turned  to  this  province,  bringing  Irish  Nell"  (Eleanor  Butler,  grandmother 
of  the  petitioners,  who  I  presume  were  first  cousins,  as  they  were  both 
petitioners  for  freedom  as  the  descendants  of  the  same  parent,  and  were 
also  husband  and  wife)  "  with  him  as  a  domestic  servant.  In  1681  she  mar- 
ried,"  (a  negro  slave)  "  and  the  repealing  law  was  passed  in  the  month  of 
August  immediately  after  the  marriage,  and  his  lordship  interested  himself  in 
procuring  the  repeal,  with  a  view  to  this  particular  case.  The  act  of  1663  was 
repealed  also,  to  prevent  persons  from  purchasing  white  women"  (as  servants) 
"  and  marrying  them  to  their  slaves,  for  the  purpose  of  making  slaves  of  them" 
(and  their  offspring.)  "  The  penalty  is  laid  upon  the  masters,  mistresses,  &c. 
and  the  clergyman  and  the  woman  are  intended  to  be  favoured."  This  state 
ment,  though  not  very  creditable  to  the  early  settlers  of  Maryland,  is  confirm 
ed  by  the  preamble  to  the  repealing  act,  and  also  by  the  terms  of  the  enacting 
clause  ;  for  it  sets  free  any  such  white  servant  woman,  and  imposes  a  fine  of 
ten  thousand  pounds  of  tobacco  upon  the  master  or  mistress  who  should  pro 
cure  or  connive  at  the  marriage.  Act  of  1681,  chap.  4. 

*  See  the  act  of  1699,  chap.  46,  entitled  "  An  act  ascertaining  the  laws  of 
this  province;"  and  the  act  of  1700,  chap.  8,  entitled  "An  act  for  repealing 
certain  laws  in  this  province,  and  confirming1  others." 


12 

be  born,  shall  be  and  they  are  hereby  declared  to  be  and  remain 
for  ever  hereafter  absolute  slaves,  and  shall  follow  the  condition 
of  the  mother."  Act  of  1740,  2  Brevard's  Digest,  229;  simi 
lar  in  Georgia,  Prince's  Dig.  446,  (act  of  1770) ;  and  in  Mis 
sissippi,  Revised  Code  of  Mississippi,  0/1823,  page  369;  and 
see  1  Rev.  Code  of  Virg.  (of  1 8 1 9 )  page  42 1 ;  2  Litt.  and  Swi. 
1149-50,  Civ.  Code  of  Louisiana,  art.  183.  By  this  law,  any 
person  whose  maternal  ancestor,  even  in  the  remotest  degree  of 
distance  from  him  or  her,  can  be  shown  to  have  been  a  negro,  or 
an  Indian,  or  a  mulatto,  or  a  mestizo,  not  free  at  the  date  of  the 
law,  although  the  paternal  ancestor  at  each  successive  genera 
tion  may  have  been  a  white  free  7nan,  is  declared  to  be  the 
subject  of  perpetual  slavery.  This  is  a  measure  of  cruelty* 

*  Under  this  law  it  may  frequently  happen,  that  a  person  whose  complexion 
is  European  may  be  legally  retained  as  a  slave.  The  well  informed  mind  will, 
upon  a  little  reflection,  perceive  the  justness  of  this  conclusion.  A  competent 
judge  of  the  subject,  Don  Anthonio  de  Ulloa,  whose  opinion  is  confirmed  by 
that  of  Mr.  Edwards  in  his  History  of  the  West  Indies,  furnishes  the  foUowing 
testimony:  "  Among  the  tribes  which  are  derived  from  an  intermixture  of  the 
whites  with  the  negroes,  the  first  are  the  mulattoes,-  next  to  these  are  the  ter- 
cerones,  produced  from  a  white  and  a  mulatto,  with  some  approximation  to  the 
former,  but  not  so  near  as  to  obliterate  their  origin.  After  these  follow  the 
quarterones,  proceeding  from  a  white  and  a  terceron.  The  last  are  the  quinte- 
rones,  who  owe  their  origin  to  a  white  and  a  quarteron.  This  is  the  last  gra 
dation,  there  being  no  visible  difference  between  them  and  the  whites,  either  in  colour 
or  features;  NAY,  THEY  ARE  OFTEN  FAIRER  THAN  THE  SPANIARDS."  See  Ed 
wards'  West  Indies,  book  4,  chap.  1.  Thus  the  quinterones,  who  are  only  four 
removes  from  a  negro  ancestor,  are  found  to  be  undistinguishable  from  the 
whites,  either  by  colour  or  features.  Yet  even  these,  and  the  descendants 
of  these  to  the  remotest  generation,  are  deemed  slaves  with  us.  In  point  of 
fact,  tercermes  are  sometimes  almost,  if  not  entirely  white.  An  instance  of" 
this  kind  occurred  in  an  individual,  whose  case  underwent  judicial  investiga 
tion  in  the  city  of  Philadelphia,  in  the  year  1786;  the  report  of  which  appears 
in  1  Dallas'  Rep.  167,  Pirate  alias  Belt  vs.  Dalby.  The  reporter's  statement  is 
given  in  these  words:  "  The  plaintiff,  being  the  supposed  issue  of  white  and 
mulatto  parents,  attended  the  defendant  to  Philadelphia  in  the  autumn  of  1784, 
and  presented  so  pure  a  complexion,  that  the  attention  of  the  Society  (Abolition 
Society  of  Pennsylvania)  was  excited,  &c.  &c.  Upon  the  trial  it  was  given  in 
evidence,  that  the  plaintiff  was  born  in  Maryland  of  an  unmarried  mulatto  wo 
man"  (who  was  a  slave.) 

I  shall  now  quote  another  instance,  of  a  most  extraordinary  character — of 
white  children  the  immediate  offspring  of  a  negro  mother;  and  though  this  may 


IS 

and  avarice  which,  to  the  reproach  of  our  republics,  there  is 
much  reason  to  believe  has  no  precedent  in  any  other  civilized 
country.  "  In  Jamaica,  the  condition  (of  slavery)  ceases  by 
express  law  to  attach  upon  the  issue,  at  the  fourth  degree  of 
distance  from  a  negro  ancestor.  In  other  islands,  (British  West 
Indies,)  the  written  law  is  silent  on  this  head;  but  by  estab 
lished  custom,  the  quadroons  or  mestizoes  (so  they  call  the  se- 
cpnd  and  third  degrees)  are  rarely  seen  in  a  state  of  slavery. " 

be  looked  upon  as  a  lusus  naturae,  to  which  no  reasonable  person  would  ex 
pect  the  general  laws  of  society  to  be  accommodated,  yet,  as  it  proves  incon- 
testably  that  whites  are  now  in  slavery  in  one  of  our  states,  under  the  express 
sanction  of  law,  I  will  make  no  apology  for  introducing  it.  The  instance  to 
which  I  refer,  is  thus  related  by  Laurence  J.  Trotti,  in  a  letter  to  Professor 
James,  of  the  University  of  Pennsylvania,  dated  November  15th,  1825.  "  Some 
time  in  the  year  1815,  a  negro  woman,  belonging  to  Mr.  Allen,  of  Barnwell, 
South  Carolina,  was  delivered  by  a  natural  unassisted  labour  of  three  children; 
two  of  them  were  white  males,  the  other  a  perfectly  black  female.  The  two 
boys  are  now  alive  and  full  grown  for  their  age.  Having,  in  company  with 
other  gentlemen,  visited  the  mother  and  children,  expressly  to  ascertain  the 
truth  of  these  facts,  I  have  no  hesitation  in  stating  the  above  mentioned  circum 
stances  as  correct,"  &c.  &c.  See  The  North  American  Medical  and  Surgical 
Journal,  No.  2,  April  1826,  page  466.  From  the  character  of  the  Journal  from 
which  this  account  has  been  taken,  and  especially  in  reliance  upon  the  judg 
ment  of  the  highly  respectable  gentleman  to  whom  the  letter  is  addressed,  I 
have  treated  the  whole  relation  as  substantially  true.  I  confess,  there  is  some 
thing  (particularly  the  distance  of  time  between  the  birth  of  the  children  and 
the  date  of  the  communication)  which  leaves  room  to  doubt  whether  an  impo 
sition  has  not  been  practised  on  the  writer  of  the  letter — whether  the  white 
children  were  not  born  of -white  parents;  yet,  admitting  this  supposition  to  be 
correct,  it  would  fortify  the  position,  that  our  lawgivers  should  pay  some  re 
spect  to  colour ;  for  here  are  two  white  children  who  have  been  already  in 
slavery  more  than  ten  years,  and  in  all  probability  they  will  remain  so  during 
life. 

An  additional  case  may  be  here  subjoined,  illustrative  of  the  general  doc 
trine  contained  in  this  note.  An  advertisement  recently  inserted  in  a  news 
paper  published  in  the  city  of  Philadelphia,  offers  a  reward  of  one  hundred 
dollars  for  the  apprehension  of  a  person  alleged  to  be  a  runaway  slave,  who  is 
thus  described:  "  Absconded  from  the  subscriber  on  the  10th  instant,  a  very 
bright  mulatto  man  named  Washington  Thomas.  HE  HAS  SOMETIMES  BEEN 
MISTAKEN  FOR  A  WHITE  MAN!!"  What  the  degree  of  distance  of  this  per 
son  from  an  African  ancestor  is,  does  not  appear;  yet,  though  more  than  once 
taken  for  a  white  man,  he  is  still  claimed  as  a  slave! !  See  Democratic  Press 
of  August  13, 182r. 


14 

Stephen's  Slavery  of  the  British  West  India  Colonies  deline 
ated,  21 ;  Edwards'  West  Indies,  book  4,  chap.  1.  And,  a& 
in  the  Spanish  and  Portuguese  colonies,  slavery  is  in  all  respects 
milder  than  in  those  of  the  British,  it  is  fairly  inferrible  that  a 
regulation  equally  favourable  to  freedom,  by  custom,  if  not  by 
express  law,  prevails  there  also.  Of  the  French  colonies  and  of 
the  Dutch,  I  have  not  such  information  as  will  authorize  an 
opinion  which  may  deserve  much  reliance ;  yet,  in  the  Code 
Noir  it  is  certain  many  provisions  may  be  indicated,  of  a  much 
more  humane  character  than  can  can  be  found  in  the  codes  of 
our  slave-holding  states,  on  kindred  topics. 

It  has  been  already  incidentally  noticed,  that  by  the  common 
law, — the  law  of  Villanage, — the  offspring  always  followed  the 
condition  of  \hc,  father:  it  has  been  also  stated,  and  indeed  the 
law  which  I  have  just  extracted,  declares  this  principle  in  une 
quivocal  terms,  that,  with  respect  to  slavery  among  us,  the  con 
dition  of  the  offspring  depends  upon  the  condition  of  the  mother. 
A  consequence  of  this  latter  rule  is,  that  whether  born  in  or  out 
of  wedlock,  the  children  are  slaves  whenever  the  mothers  are 
so.  But  as  to  the  child  born  out  of  wedlock,  while  from  mo 
tives  of  public  policy  the  common  law  prevents  him  from  de 
riving  any  benefit  from  his  parents,  by  way  of  inheritance,  it 
declares,  with  a  consistency  strongly  recommended  by  its  huma 
nity,  that  he  shall  not  be  obnoxious  to  the  evils  of  slavery. 
Had  these  two  maxims  of  the  common  law,  i.  e.  that  the  off 
spring  follows  the  condition  of  the  father, — and,  that  an  illegiti 
mate  is  always  born  free, — been  permitted  to  retain  their  place 
in  colonial  jurisprudence,  none  but  negroes  of  the  whole  blood 
(except  from  the  rare  instances  of  a  matrimonial  alliance  between 
a  free  woman  not  black  and  an  abject  negro  slave)  would  be 
numbered  among  the  victims  of  slavery! !  Every  mulatto,  ex 
cept  from  the  source  just  mentioned,  would  have  been  free — a 
destiny,  at  which,  though  it  may  have  no  claim  to  support  it 
superior  to  what  may  be  avouched  for  the  negro,  yet,  inasmuch 
as  it  would  have  prevented  the  tremendous  augmentation  of  our 
servile  population,  the  evils  of  which  are  daily  more  and  more 
felt,  humanity  and  religion  would  have  had  cause  to  rejoice. 

I  am  aware  of  a  reply  which  may  be  given  to  these  remarks. 


15 

It,  may  be  said,  "  True,  on  your  principles,  no  mulatto  would 
be  a  slave — negroes  only  would  be  such;  still  it  would  be  neces 
sary  only  to  encourage  matrimony  among  slaves,  and  the  de 
crease  of  slaves,  which  you  consider  so  important,  would  not 
happen. "  Without  stopping  to  show  that  this  view  of  the  mat 
ter  is  not  altogether  correct,  it  may  be  justly  rejoined,  that  this 
very  encouragement  to  matrimony  would,  in  itself,  be  of  vast 
moment,  from  its  moral  effects;  and,  furthermore,  (what  ought 
by  "no  means  to  be  lost  sight  of,)  since  while  the  parties  to  a 
marriage  contract  are  in  full  life,  neither  of  them  can  lawfully 
enter  into  a  similar  contract  with  a  third  person,  the  master's 
interest,  or  what  he  conceives  to  be  so,  would  in  a  great  degree 
avert  the  terrible  calamity,  which  is  now  common — a  separa 
tion  of  the  parents  of  the  same  children — a  separation  of  those 
who  ought  to  be  strictly  and  legally  husband  and  wife. 

It  may  excite  the  surprise  of  some,  to  discover  Indians  and 
their  offspring  comprised  in  the  doom  of  perpetual  slavery;  yet 
not  only  is  incidental  mention  of  them  as  slaves  to  be  met  with 
in  the  laws  of  most  of  the  states  of  our  confederacy,  but  in  one 
at  least,  direct  legislation  may  be  cited  to  sanction  their  enslave 
ment.  In  Virginia,  "By  an  act  passed  in  the  year  1679,  it 
was,  for  the  better  encouragement  of  soldiers,  declared,  that 
what  INDIAN  PRISONERS  should  be  taken  in  a  war  in  which 
the  colony  was  then  engaged,  should  be  free  purchase  to  the 
soldiers  taking  them.  In  1682,  it  was  declared,  that  all  ser 
vants  brought  into  this  country,  (Virginia)  by  sea  or  land,  not 
being  Christians,  whether  negroes,  Moors,  mulattoes  or  INDI 
ANS,  (except  Turks  and  Moors  in  amity  with  Great  Britain,) 
and  all  INDIANS  which  should  thereafter  be  SOLD  by  neighbour 
ing  Indians,  or  any  other  trafficking  with  us,  as  slaves,  should  be 
SLAVES  to  all  intents  and  purposes."*  Per  Judge  Tucker,  in 

*  "  These  acts,"  says  Judge  Tucker,  speaking  of  the  acts  cited  in  the  text, 
"  continued  in  force  till  the  year  1691,  when  an  act  having1  been  passed, 
authorizing  a  free  and  open  trade  for  all  persons,  at  all  times  and  at  all  places, 
with  all  Indians  whatsoever,  it  was  decided  by  the  courts,  that  this  operated  as 
a  repeal  of  the  former  acts."  See  1  Henning  and  Munfortfs  Reports,  139.  The 
descendants  of  such  Indians  as  were  reduced  to  slavery  under  the  sanction  of 
the  acts  of  1679  and  1682,  and  during  the  time  in  which  these  were  in  force, 


16 

the  case  of  Hudgins  vs.  Wright,  1  Henning  and  Munford-$ 
Reports,  139. 

And,  in  the  state  of  New  Jersey,  it  was  decided  by  the  su 
preme  court,  in  the  year  1797,  "flMft  Indians  might  be  held 
as  slaves. "  No  law  was  adduced  to  show  the  origination  of  such 
a  right,  but  it  appeared  by  several  acts  of  assembly,  one  of  which 
was  as  early  as  1713-14,  that  they  were  classed  with  negroes 
and  mulattoes,  as  slaves.  Chief  Justice  Kinsey  remarked, 
"  They  (Indians)  have  been  so  long  recognised  as  slaves,  in  our 
law,  that  it  would  be  as  great  a  violation  of  the  rights  of  property 
to  establish  a  contrary  doctrine  at  the  present  day,  as  it  would 
in  the  case  of  Africans;  and  as  useless  to  investigate  the  man 
ner  in  which  they  ORIGINALLY  lost  their  freedom. "  The  State 
vs.  Waggoner,  1  Halstead's  Reports,  374  to  376. 

In  addition  to  the  laws  already  cited,  declaring  who  shall  be 
deemed  slaves,  the  codes  of  the  slave-holding  states  exhibit  a 
considerable  number  of  enactments,  by  which  FREE  negroes, 
&c.  are  converted  into  absolute  slaves.  Thus,  in  South  Caro 
lina,  if  zfree  negro  harbour,  conceal  or  ENTERTAIN  a  runaway 
slave,  or  a  slave  charged  "  with  any  criminal  matter,"  he  shall 
forfeit  the  sum  of  ten  pounds  currency  for  the  first  day,  and 
twenty  shillings  for  every  succeeding  day,  &c.  And  in  case 
such  forfeitures  cannot  be  levied,  or  such  free  negro,  &c.  shall 
not  pay  the  same,  together  with  the  charges  attending  the  prose 
cution,  such  FREE  negro,  &c.  shall  be  ordered  by  the  justice  to 
be  sold  at  public  outcry,  and  the  money  arising  by  such  sale 
shall,  in  the  first  place,  be  paid  for  and  applied  towards  the  for 
feiture,  &c.  to  the  owner,  &c. ;  and  the  overplus,  if  any,  shall 

may  even  at  the  present  time  be  held  as  slaves  in  Virginia! !  But  the  deci 
sions  of  the  courts  protect  all  others.  The  highest  court  of  judicature  has  de 
cided,  that  "  a  native  American  Indian  brought  into  Virginia  since  the  year 
1691,  could  not  lawfully  be  held  in  slavery  there,  although  such  Indian  was  a 
slave  in  the  country  (Jamaica)  from  which  she  had  been  brought,  previously 
to  and  at  the  time  of  her  removal."  Butt  vs.  Rachel,  4  Munford's  Reports,  209. 
See  also,  2  Henning  and  Munford's  Reports,  149,  Pallas  and  others  vs.  Hill  and 
others,  in  which  cases  the  claim  to  freedom  of  at  least  twelve  descendants  of 
native  American  Indians,  whose  maternal  ancestors  had  not  been  reduced  to 
slavery  till  after  1691,  was  established, 


17 

be  paid  by  the  said  justice  into  the  hands  of  the  public  trea 
surer,*  &c.     2  Brevard's  Digest,  237,  act  of  1740. 

*  I  have,  in  the  text,  considered  the  whole  of  the  34th  section  of  the  act  of 
1740,  as  the  law  of  South  Carolina  at  the  present  time.  A  very  recent  pro 
ceeding  in  one  of  the  judicial  tribunals  of  that  state,  is  my  justification  for  so 
doing-.  The  subjoined  extract  from  the  Charleston  Courier  of  the  13th  August, 
1827,  details  the  proceeding  to  which  reference  is  here  made:  "A  trial  of 
much  interest  took  place  ou  Saturday  last,  at  the  City  Hall,  before  a  court, 
composed  of  John  Michel,  Esq.  Justice  of  the  Quorum,  and  two  Freeholders.  The 
parties  put  upon  their  trial  were  Hannah  Elliott,  a  free  black  woman,  together 
with  her  daughter  Judy,  and  her  sons  Simon  and  Sam.  They  were  severally 
indicted  under  the  act  of  1740,  for  harbouring,  concealing,  entertaining  two 
female  children,  aged  about  six  and  nine  years,  the  property  of  a  lady  of  this 
city,  the  extraordinary  concealment  and  discovery  of  which,  was  mentioned  a 
short  time  since. 

"  After  a  patient  investigation  of  all  the  circumstances  of  the  case,  the  pri 
soners  having  the  aid  of  able  counsel,  the  court  found  them  all  guilty,  and  sen 
tenced  them,  in  accordance  with  the  provisions  of  the  aforesaid  act,  as  follows: 
Hannah  Elliott,  with  having  harboured  these  slaves,  for  the  term  of  two  years; 
and  her  children  with  having  harboured  them  respectively,  for  sixteen  months 
each.  The  penalty  under  the  act,  is  a  forfeiture  of  ten  pounds  currency  for  the 
first  day,  and  twenty  shillings  currency  for  every  day  after,  to  the  use  of  the 
owner  of  any  slave  so  harboured,  concealed  or  entertained.  The  act  also  pro 
vides,  that,  in  case  the  forfeiture  cannot  be  levied  on  such  free  negro,  together 
with  the  charges  attending  the  prosecution,  the  parties  must  be  sold,  at  pub 
lic  outcry,  and  the  money  arising  from  such  sale  be  applied,  in  the  first  place, 
towards  the  forfeiture  due  to  the  owner,  &c.  and  the  overplus,  if  any,  be  paid 
into  the  public  treasury/' 

Newspapers  of  later  dates  confirm  this  statement,  and  inform  us,  what  might 
naturally  have  been  anticipated,  that  the  unhappy  convicts,  being  unable  to 
satisfy  the  enormous  penalties  which  had  been  imposed  upon  them,  were  sold 
at  public  outcry,  ten  days  after  the  trial,  for  slaves  during  life. 

But,  notwithstanding  this  decision  of  the  Charleston  court,  I  have  no  doubt, 
that  the  act  of  1740,  so  far  as  concerns  the  offence  of  free  negroes,  mulattoes  or 
mestizoes,  in  harbouring,  concealing  or  entertaining  a  runaway  slave,  NOT  CHARGED 
WITH  ANY  CRIMINAL  MATTER,  is  repealed.  On  the  20th  December,  1821,  the 
legislature  of  South  Carolina  enacted  a  law  in  these  words:  « If  any  free  negro, 
mulatto  or  mestizo,  shall  harbour,  conceal  or  entertain  any  fugitive  or  runaway 
slave,  and  be  convicted  thereof  before  two  justices  and  Jive  freeholders,  he  shall 
suffer  such  corporeal  punishment,  not  extending  to  life  or  limb,  as  the  said 
justices  and  freeholders,  who  try  such  offender,  shall  in  their  discretion  think 
fit."  See  Acts  of  the  Session  of  Dec.  1821,  page  20;  and  James'  Digest,  390. 

By  comparing  these  two  acts  together,  it  will  be  perceived  that  they  agree 
in  the  description  of  the  offence  to  be  provided  against,  while  they  differ  in 

3 


18 

So,  "  in  case  any  slave  shall  be  emancipated  or  set  free,  other 
wise  than  according  to  the  act  (of  1800)  regulating  emancipa 
tions,  it  shall  be  lawful  for  any  person  whosoever  to  seize  and 
convert  to  his  or  her  own  use,  and  to  keep  as  his  or  her  pro 
perty  the  said  slave  so  illegally  emancipated  or  set  free." 
2  Brevard's  Digest,  256.  And  see  Hayward's  Manual,  525, 
act  of  1111. 

And  in  Virginia,  "  If*  any  emancipated  slave  (infants  ex- 
cepted)  shall  remain  within  the  state  more  than  twelve  months 
after  his  or  her  right'  to  freedom  shall  have  accrued,  he  or  she 
shall  forfeit  all  such  right,  and  may  be  apprehended  and  sold 


two  important  particulars:  first,  as  to  the  tribunal  before  which  offenders 
against  the  law  are  to  be  tried:  secondly,  in  the  punishment  to  be  inflicted  on 
conviction.  Under  the  act  of  1T40,  the  tribunal  consists  of  one  justice  and  two 
freeholders,  as  is  stated  in  another  section  of  the  same  act:  and  the  act  of  1821 
expressly  directs  a  tribunal  composed  of  two  justices  andyfoe  freeholders.  JBy 
the  former  act,  two  (a  majority)  members  of  the  court,  can  convict  or  acquit: 
according  to  the  latter,  four  are  necessary  for  either  purpose.  On  the  suppo 
sition  that  both  acts  are  in  force,  the  offender  may  be  tried  and  punished  twice 
for  one  and  the  same  offence — a  conclusion,  which  is  forbidden  by  a  principle 
of  criminal  jurisprudence,  which  has  no  exception  in  the  laws  of  any  civilized 
country,  namely,  that  "  no  man  can  be  placed  in  peril  of  legal  penalties  more 
than  once  upon  the  same  accusation."  1  Ckitty's  Criminal  Law,  452;  4  Bla, 
Com.  335.  The  provisions  of  the  two  acts  are  therefore  manifestly  inconsist 
ent  with  each  other,  in  which  case,  although  words  of  express  repeal  are  not 
used  in  the  latter  act,  yet  by  implication  it  repeals  the  former,  the  old  statute 
always  giving  place  to  the  new,  where  both  cannot  stand  together.  1  Bl, 
Com.  89. 

The  only  argument  by  which  the  position,  that  both  acts  are  in  force,  can  be 
jnaintained,  is,  that  the  penalties  are  cumulative.  This,  however,  can  take 
place  only  where  but  one  conviction  is  required;  whereas,  it  has  been  shown 
above,  that  two  are  necessary  according  to  these  acts,  inasmuch  as  two  distinct 
tribunals  for  trial  are  appointed. 

*  The  late  President  Jefferson,  having,  by  his  last  will,  emancipated  five 
slaves,  for  whom  he  appears  to  have  entertained  much  personal  regard ;  in 
consequence  of  this  section,  made  the  following  pathetic  appeal  to  the  legis 
lature  of  his  native  state :  "  I  humbly  and  earnestly  request  of  the  legislature  of 
Virginia,  a  confirmation  of  the  bequests  to  these  servants,  with  permission  to 
remain  in  this  state,  where  their  families  and  connexions  are,  as  an  additional 
instance  of  the  favour,  of  which  I  have  received  so  many  other  manifestations 
in  the  course  of  my  life,  and  for  which  1  now  give  them  my  solemn  and  dutiful 
thanks." 


19 

by  the  overseers  of  the  poor,  &c.  for  the  benefit  of  THE  LITE 
RARY  FUND!!"  I  Rev.  Code,  436. 

By  an  act  of  Georgia,  (December  19,  1818,)  a  penalty  of  a 
fine  of  one  hundred  dollars  is  incurred  by  any  free  person  of 
colour,  (Indians  in  amity  with  the  state,  and  regularly  articled 
seamen,  &c.  arriving  in  any  ship,  &c.  excepted,)  for  coming 
into  the  state;  and  "  upon  failure  to  pay  the  same  within  the 
time  prescribed  in  the  sentence.  &c.  he,  she  or  they  shall  be 
liable  to  be  sold  by  public  outcry  as  a  slave,"  &c.  Prince's 
Digest,  465;  and  see  467. 

In  Mississippi,  every  negro  or  mulatto  found  within  the  state, 
and  not  having  the  ability*  to  show  himself  entitled  to  free 
dom,  may  be  sold,  by  order  of  the  court,  as  a  slave.  Missis 
sippi  Rev.  Code,  389. 

Maryland,  in  1717,  (chap.  13,  sect.  5,)  adopted  these  provi 
sions:  "  If  any  free  negro  or  mulatto  intermarry  with  any 
white  woman,  or  if  any  white  man  shall  intermarry  with  any 
negro  or  mulatto  woman,  such  negro  or  mulatto  shall  become 
a  slave  during  life,  except  mulattoes  born  of  white  women, 
who,  &c.  shall  become  servants  for  seven  years." 

Another  copious  source  of  slavery, — the  condemnation  under 
laws  of  several  of  the  slave-holding  states,  made  specifically  for 
this  purpose,  of  natives  of  Africa,  brought  into  the  United  States 
in  violation  of  the  act  of  congress  of  March  2,  1807,  entitled 
"  An  act  to  prohibit  the  importation  of  slaves,  &c.  from  and 
after  the  first  day  of  January,  1808" — I  shall  defer  the  consi 
deration  of,  to  a  subsequent  chapter.  See  the  Appendix, 
chap.  2. 

Before  quitting  this  chapter,  it  may  not  be  amiss  to  notice 
cursorily,  a  species  of  SERVITUDE,  (growing  out  of  slavery,) 
which  is  peculiar,  it  is  thought,  to  our  country.  It  originated 
most  probably  in  the  province  of  Maryland,  and  will  be  readily 
apprehended  from  the  subjoined  extract  from  the  act  of  that 
province  in  1663,  chap.  20,  sect.  3:  "All  the  ISSUE  of  English 

*  The  extreme  hardship  of  this  law  will  be  seen,  when  I  come  to  treat  of 
the  exclusion  of  negroes,  mulattoes,  &c.  as  witnesses,  where  the  interest  of 
white  persons  is  in  question. 


20 

or  other  free-born  women,  that  have  already  married  negroes? 
shall  serve  the  master  of  their  parents  till  they  be  thirty  years 
of  age,  and  no  longer. "  This  act  having  been  annulled  in  1699 
or  1700,  was  revived  in  principle  by  the  act  of  1715,  chap.  44, 
sect.  26,  with  an  extension  of  one  year  to  the  period  of  servi 
tude  fixed  by  the  old  law.  The  same  provision  shortly  after 
wards  recommended  itself  to  the  general  assembly  of  Pennsyl 
vania,*  and  may  be  found  incorporated  in  an  act  passed  March 
5th,  1725-6,  entitled  "  An  act  for  the  better  regulating  of  ne 
groes  in  this  province."  In  1741,  chap.  24,  sect.  18,  it  became 
the  law  of  North  Carolina,  where,  as  also  in  Tennessee,  it  is 
presumed  to  be  in  force  at  the  present  time.  With  respect  to 
Maryland,  it  is  necessary  to  add,  that  the  progressive  light  of 
nearly  a  century  and  a  half  has  at  length  enabled  her  to  discover, 
as  is  declared  in  the  act  of  1796,  chap.  67,  sect.  14,  that  "it  is 
contrary  to  the  dictates  of  humanity  and  the  principles  of  the 
Christian  religion,  to  inflict  personal  penalties  on  children  for 
the  offence  of  their  parents;"  and  this  species  of  servitude  has, 
in  that  state,  been  accordingly  abolished. 

*  I  have  been  careful  to  note  with  particularity  the  act  of  assembly  of  Penn 
sylvania,  which  gave  rise  to  this  species  of  servitude,  chiefly  because  the  late 
Judge  Rush,  has  inadvertently  stated,  that  usage  was  the  authority  upon  which 
it  was  founded.  See  Respublica  vs.  Negro  Betsey  et  al,  1  Dallas'  Reports,  475, 


21 


CHAPTER  II. 

OP  THE  INCIDENTS  OF  SLAVERY. 

WITH  the  present  chapter  I  propose  to  begin  an  examination 
of  the  nature  and  legal  incidents  of  slavery.  And  in  doing  so, 
I  will,  in  the  first  place,  treat  of  the  laws  which  regard  the  slave 
as  property.  This  will  comprehend  such  laws  only  as  concern 
the  relation  of  master  and  slave.  Afterwards,  those  which 
treat  of  the  slave  as  a  member  of  civil  society  will  be  dis 
cussed. 

The  civil  law,  except  where,  modified  by  statute  or  by  usages 
which  have  acquired  the  force  of  law,  is  generally  referred  to 
in  the  slave-holding  states,  as  containing  the  true  principles  of 
the  institution.  It  will  be  proper,  therefore,  to  give  an  abstract 
of  its  leading  doctrines;  for  which  purpose,  I  use  Dr.  Taylor's 
Elements  of  the  Civil  Law,  page  429.  "  Slaves,"  says  he, 
"  were  held  pro  nullis:  pro  mortuis:  pro  quadrupedibus. — 
They  had  no  head  in  the  state,  no  name,  title  or  register:  they 
were  not  capable  of  being  injured:  nor  could  they  take  by  pur 
chase  or  descent:  they  had  no  heirs,  and  therefore  could  make 
no  will :  exclusive  of  what  was  called  their  peculium^  whatever 
they  acquired  was  their  master's:  they  could  not  plead  nor  be 
pleaded  for,  but  were  excluded  from  all  civil  concerns  whatever: 
they  could  not  claim  the  indulgence  of  absence  reipublicse  causa: 
they  were  not  entitled  to  the  rights  and  considerations  of  matri 
mony,  and  therefore  had  no  relief  in  case  of  adultery:  nor  were 
they  proper  objects  of  cognation  or  affinity,  but  of  quasi-cogna- 
tion  only:  they  could  be  sold,  transferred  or  pawned  as  goods  or 
personal  estate;  for  goods  they  were,  and  as  such  they  were 
esteemed:  they  might  be  tortured  for  evidence:  punished  at  the 
discretion  of  their  lord,  or  even  put  to  death  by  his  authority." 
This  description  is  to  be  taken  as  applicable  to  the  condition  of 
slaves  at  an  early  period  of  the  Roman  history;  for  before  the 
fall  of  the  Roman  empire,  several  important  changes  had  been 


\ 


22 

introduced  favourable  to  the  slave.  By  the  lex  Cornelia  de 
sicariis,  the  killing  of  a  slave  became  punishable.  Dig-  488, 
Cooper's  Justinian,  411.  The  jus  vita3  et  necis  claimed  by  the 
master,  was  restrained  by  Claudius,  the  successor  of  Caligula. 
Ibid.  The  emperor  Adrian  prohibited  generally  cruel  treatment 
towards  slaves;  and  he  banished  Umbricia,  a  lady  of  quality,  for 
five  years,  quod  ex  levissimis  causis  suas  ancillas,*  atrocissime 
tractasset.  Cooper's  Justinian,  412.  Antoninus  Pius  applied 
the  lex  Cornelia  de  sicariis,  specifically  to  the  masters  of  slaves; 
and  the  same  law  was  strengthened  by  Severus  and  by  Constan- 
tine.  Ibid.  Slaves  might  always  induce  an  investigation  by 
flying  to  the  statues  of  the  princes.  Ibid. 

I  believe  it  will  be  found  upon  a  close  comparison,  that  the 
condition  of  the  slave,  in  our  slave-holding  states,  so  far  as  the 
latu  may  be  invoked  in  his  behalf,  is  but  little,  if  in  any  re 
spect,  better  than  was  that  of  the  Roman  slave  under  the  civil 
law.  According  to  the  law  of  Louisiana,  "  A  slave  is  one  who 
is  in  the  power  of  a  master  to  whom  he  belongs.  The  master 
may  sell  him,  dispose  of  his  person,  his  industry  and  his  labour: 
he  can  do  nothing,  possess  nothing,  nor  acquire  any  thing  but 
what  must  belong  to  his  master."  Civil  Code,  art.  35.  As  to 
the  master's  power  to  punish  his  slave,  a  limitation  seems  to 
be  contemplated  by  the  following  article:  "  The  slave  is  entirely 
subject  to  the  will  of  his  master,  who  may  correct  and  chastise 
him,  though  not  with  unusual  rigour,  or  so  as  to  maim  or 
mutilate  him,  or  to  expose  him  to  the  danger  of  loss  of  life, 
or  to  cause  his  death."  *ftrt.  173.  —  Yet,  as  will  be  fully  demon 
strated  hereafter,  no  such  limitation  actually  exists,  or  can_by 


With  respect  to  the  other  slave-holding  states,  as  none  of  these 
have  adopted  entire  written  codes,  enunciations  of  such  a  gene 
ral  nature,  as  are  exhibited  in  the  quotations  just  made  from  the 
law  of  Louisiana,  are  not  to  be  expected.  Nevertheless,  the 
cardinal  principle  of  slavery,  —  that  the  slave  is  not  to  be  ranked 

*  Because  for  very  slight  causes  she  had  treated  her  female  slaves  very 
cruelly. 


23 

among  sentient  beings,  but  among  things* — is  an  article  of  pro 
perty— a  chattel  personal—obtains  as  undoubted  law  in  all  of 
these  states.  In  South  Carolina  it  is  expressed  in  the  following 
language:  "  Slaves  shall  be  deemed,  sold,  taken,  reputed  and 
adjudged  in  law  to  be  chattels  personal^  in  the  hands  of  their 


*  An  apt  illustration  of  this  doctrine,  is  presented  in  an  act  of  Maryland,  of 
1798,  Chap.  CI.  ch.  12.  No.  12.  The  following  is  the  language  of  this  enlight 
ened  state:  "  In  case  the  personal  property  of  a  ward  shall  consist  of  specific 
articles,  such  as  SLAVES,  WORKING  BEASTS,  ANIMALS  OF  ANY  KIND,  stock,  furni 
ture,  plate,  books,  AND  so  FORTH,  the  court,  if  it  shall  deem  it  advantageous  for 
the  ward,  may  at  any  time  pass  an  order  for  the  sale  thereof,"  &c.  &c. 

f  In  Louisiana,  "  Slaves  though  moveable  by  their  nature,"  says  the  civil 
code,  "are  considered  as  immoveable  by  the  operation  of  law."  Art,  461.  And 
by  act  of  assembly  of  June  7,  1806,  "  Slaves  shall  always  be  reputed  and  con 
sidered  real  estate;  shall  be,  as  such,  subject  to  be  mortgaged,  according  to 
the  rules  prescribed  by  law,  and  they  shall  be  seized  and  sold  as  real  estate." 
1  Martin's  Digest,  612.  And  in  Kentucky,  by  the  law  of  descents,  they  are  con 
sidered  real  estate,  2  Litt.  and  Sui.  Digest.  1155,  and  pass  in  consequence  to 
heirs  and  not  to  executors.  They  are,  however,  liable  as  chattels  to  be  sold  by 
the  master  at  his  pleasure,  and  may  be  taken  in  execution  for  the  payment  of 
his  debts.  Ibid,  and  see  1247.  A  law  (act  of  1705)  similar  to  that  of  Kentucky, 
once  obtained  in  Virginia,  but  it  was  repealed  after  a  short  experiment.  See 
note  to  1  Rev.  Code,  432. 

In  Massachusetts  and  Connecticut,  and  probably  in  the  whole  country  which 
used  to  bear  the  name  of  New  England,  the  harsh  features  of  slavery  were 
never  known.  In  Massachusetts  colony,  so  early  as  in  the  year  of  our  Lord 
one  thousand  six  hundred  and  forty-one,  the  following  law  was  made :  "  It  is 
ordered  by  this  court  and  the  authority  thereof,  that  there  shall  never  be  any 
bond  slavery,  villenage  or  captivity  among  us,  unless  it  be  lawful  captives  taken 
in  just  war,  (such)  as  willingly  sell  themselves  or  are  sold  to  us;  and  such  shall 
have  the  liberties  and  CHRISTIAN  usage  which  the  law  of  GOD  ESTABLISHED  IN 
ISRAEL  concerning  such  persons  doth  morally  require."  See  General  Laws  and 
Liberties  of  Massachusetts  Bay,  chap.  12,  sect.  2.  Though  the  phraseology  of 
this  law  savour  more  of  Hibernia  than  is  supposed  to  be  common  to  New  Eng 
land,  yet  its  meaning  is  sufficiently  palpable.  That  the  law  was  not  a  dead 
letter,  we  have  the  authority  which  may  be  collected  from  an  opinion  delivered 
in  the  case  of  Winchenden  vs.  Hatfield,  4  Mass.  Rep.  127-8,  by  Chief  Justice  Par 
sons.  "  Slavery,"  says  he,  "  was  introduced  into  this  country  soon  after  its 
first  settlement.  The  slave  was  the  property  of  the  master,  subject  to  his  or 
ders,  and  to  reasonable  correction  for  misbehaviour.  If  the  master  was  guilty 
of  a  cruel  or  unreasonable  castigation  of  his  slave,  he  was  liable  to  be  punished 
for  the  breach  of  the  peace,  and,  I  believe,  the  slave  was  allowed  to  demand  sure- 
ties  of  the  peace  against  a  violent  and  barbarous  master.  Tinder  these  regu- 


24 

owners  and  possessors,  and  their  executors,  administrators  and 
assigns,  to  all  intent  s>  constructions  and  purposes  whatsoever. 
2  Brev.  Dig.  229 ;  Prince's  Digest,  446,  fyc.  fyc.  Absolute  des 
potism  needs  not  a  more  comprehensive  grant  of  power  than 
that  which  is  here  conferred.  And  though  the  particular  design 
of  the  law-makers  in  framing  this  section  was  merely  to  declare 
of  what  nature — whether  real  or  personal  estate — slaves  as  pro 
perty  should  be  regarded,  yet  it  is  not  on  that  account  the  less 
appropriate  for  the  purpose  to  which  I  apply  it.  It  is  strictly 
consonant  with  an  inflexible  principle  of  their  acknowledged 
law. 

Viewing  the  language,  "  that  a  slave  shall  be  deemed  a 
chattel  personal  in  the  hands  of  his  owner,  to  all  intents, 
constructions  and  purposes  whatsoever,77  in  this  light,  it  is 
plain  that  the  dominion  of  the  master  is  as  unlimited,  as  is  that 
which  is  tolerated  by  the  laws  of  any  civilized  country  in  rela 
tion  to  brute  animals — to  quadrupeds,  to  use  the  words  of  the 
civil  law.  How  far  the  existing  state  of  slavery,  as  by  law  es 
tablished  and  protected,  may  conform  to  this  deduction,  will 
best  appear  by  a  more  minute  investigation  of  the  subject.  And 
in  order  to  simplify  the  inquiry,  and  to  enable  the  reader  to 
arrive  at  a  proper  conclusion  without  difficulty,  I  shall  subjoin, 
in  distinct  propositions,  what  will  be  found  to  be  corollaries 

lations,  the  treatment  of  slaves  was  in  general  mild  and  humane,  and  they  suf 
fered  hardships  not  greater  than  hired  servants." 

And  in  Connecticut,  Judge  Reeve,  speaking  of  slavery  there,  holds  this  lan 
guage  :  "  The  law,  as  heretofore  practised  in  this  state,  respecting  slaves,  must 
now  be  uninteresting.  I  will,  however,  lest  the  slavery  which  prevailed  in  this 
state  should  be  forgotten,  mention  some  things,  that  show  that  slavery  here 
was  very  far  from  being  of  the  absolute,  rigid  kind.  The  master  had  no  con 
trol  over  the  life  of  his  slave.  If  he  killed  him,  he  was  liable  to  the  same  pun 
ishment  as  if  he  killed  a  freeman.  The  master  was  as  liable  to  be  sued  by  the 
slave,  in  an  action  for  beating  or  wounding,  or  for  immoderate  chastisement, 
as  he  would  be  if  he  had  thus  treated  an  apprentice.  A  slave  was  capable  of 
holding  property,  in  character  of  devisee  or  legatee.  If  the  master  should 
take  away  such  property,  his  slave  would  be  entitled  to  an  action  against  him, 
by  his  prochein  ami  (next  friend.)  From  the  whole  we  see,  that  slaves  had  the 
same  right  of  life  and  property  as  apprentices;  and  that  the  difference  betwixt 
them  was  this:  an  apprentice  is  a  servant  for  time,  and  the  slave  is  a  servant 
for  life."  Reeve's  Law  of  Barm  tf  Femme,  &?c.  340-1. 


25 

from  the  act  of  South  Carolina;  and,  in  connexion  with  each  of 
them,  such  laws  as  may  be  specifically  applicable  will  be  quoted, 
and  their  just  bearing  indicated. 

Prop.  I.  The  master  may  determine  the  kind,  and  degree, 
and  time  of  labour,  to  which  the  slave  shall  be 
subjected. 

II.  The  master  may  supply  the  slave  with  such  food 
and  clothing  only,  both  as  to  quantity  and  quality  * 
as  he  may  think  proper,  or  find  convenient. 

III.  The  master  may,  at  his  discretion,  inflict  any  pun 

ishment  upon  the  person  of  his  slave. 

IV.  All  the  power  of  the  master  over  his  slave  may  be 

exercised  not  by  himself  only  in  person,  but  by 
any  one  whom  he  may  depute  as  his  agent. 
V.  Slaves  have  no  legal  rights  of  property  in  things, 
real  or  personal;  but  whatever  they  may  acquire 
belongs,  in  point  of  law,  to  their  masters. 
VI.  The  slave  being  a  personal  chattel,  is  at  all  times 
liable  to  be  sold   absolutely,   or  mortgaged  or 
leased,  at  the  will  of  his  master. 

VII.  He  may  also  be  sold  by  process  of  law  for  the  satis 

faction  of  the  debts  of  a  living,  or  the  debts  and 
bequests  of  a  deceased  master,  at  the  suit  of  cre 
ditors  or  legatees. 

VIII.  A  slave  cannot  be  a  party  before  a  judicial  tribunal, 

in  any  species  of  action,  against  his  master,  no 
matter  how  atrocious  may  have  been  the  injury 
received  from  him. 

IX  Slaves  cannot  redeem  themselves,  nor  obtain  a 
change  of  masters,  though  cruel  treatment  may 
have  rendered  such  change  necessary  for  their 
personal  safety. 

X,   Slaves  being  objects  of  property,  if  injured  by  third 
persons,  their  owners  may  bring  suit,  and  recover 
damages,  for  the  injury. 
XL  Slaves  can  make  no  contract. 
XII.   Slavery  is  hereditary  and  perpetual, 
4 


26 

Preparatively  to  the  separate  discussion  of  the  above  propo 
sitions,  the  remark  may  be  made,  as  applicable  to  each,  that  the 
absence  of  a  legislative  change  as  to  the  law  of  the  proposition, 
is  always  to  be  taken  as  an  implication  that  it  exists  as  is  therein 
stated.  For  the  propositions,  it  will  be  recollected,  are  corol 
laries  from  the  express  general  law. 

Prop.  I.  THE  MASTER  MAY  DETERMINE  THE  KIND,  AND  DE 
GREE,  AND  TIME  OF  LABOUR,  TO  WHICH  THE   SLAVE   SHALL  BE  . 
SUBJECTED. 

In  most  of  the  slave-holding  states,  the  law  is  silent  on  this 
topic.  There  can  be  no  doubt,  therefore,  as  I  have  just  inti 
mated,  that  it  is  given  correctly  in  the  terms  of  the  proposition, 
As  to  the  silence  of  the  law,  the  codes  of  Georgia,  South  Caro 
lina,  Louisiana  and  Mississippi,  furnish  exceptions — with  what 
efficacy,  will  be  shown  in  the  succeeding  observations.  One  of 
these  exceptions  is  as  follows: 

"  If  any  person  shall  on  the  Lord's  day,  commonly  called 
Sunday,  employ  any  slave  in  any  work  or  labour,  (works  of  ab 
solute  necessity,  and  the  necessary  occasions  of  the  family  only 
excepted,)  every  person  so  offending  shall  forfeit  and  pay  the 
sum  of  ten  shillings  for  every  slave  he,  she  or  they  shall  so  cause 
to  work  or  labour. "  Act  of  May  10,  1770;  Prince's  Digest, 
455.  So  in  Mississippi,  under  a  penalty  of  two  dollars.  Rev. 
Code,  317;  Act  of  June  13,  1822. 

66  Any  owner  or  owners  of  a  slave  or  slaves,  who  shall  cruelly 
beat*  such  slave  or  slaves,  by  unnecessary  or  excessive  whip 
ping,  by  withholding  proper  food  and  sustenance,  by  requiring 
greater  labour  from  such  slave  or  slaves  than  he  or  she  or  they 
are  able  to  perform,  by  not  affording  proper  clothing,  whereby 
the  health  of  such  slave  or  slaves  may  be  injured  and  impaired, 
every  such  owner  or  owners  shall,  upon  sufficient  information 
being  laid  before  the  grand  jury,  be  by  said  grand  jury  presented, 
whereupon  it  shall  be  the  duty  of  the  attorney  or  solicitor  gene 
ral  to  prosecute  said  owner  or  owners,  who,  on  conviction,  shall 


*  Beat  is  the  word  used  in  Prince's  Digest,  from  which  the  citation  is  made. 
To  make  sense,  treat  .should  he  substituted. 


27 

be  sentenced  to  pay  a  fine,  or  be  imprisoned,  or  both,  at  the  dis 
cretion  of  the  court. "  Prince's  Digest,  376  (act  of  1817.) 

The  ostensible  design  of  these  laws,  is  to  afford  protection  to 
the  slave.  But,  unfortunately  for  the  oppressed,  a  single  fact 
proves  that  the  " promised  good"  is  almost,  if  not  altogether 
illusory.  It  is  an  inflexible  and  universal  rule  of  slave  law, 
(to  which  more  particular  attention  will  he  hereafter  given,) 
founded  in  one  or  two  states  upon  usage,  in  others  sanctioned 
by  express  legislation,  THAT  THE  TESTIMONY  OP  A  COLOURED 

PERSON,  WHETHER  BOND  OR  FREE, CANNOT  BE  RECEIVED  AGAINST 

A  WHITE  PERSON!!!  It  is  scarcely  necessary  to  add  another 
word  to  substantiate  the  allegation,  that  these  laws  of  Georgia 
ought  to  be  considered  entirely  and  unqualifiedly  nugatory. 
By  way  of  illustration,  however,  suppose  a  slave,  by  the  com 
mand  of  his  master,  and  through  terror  of  his  displeasure  and 
punishment,  is  discovered,  employed  on  the  Sabbath,  in  the 
ordinary  labours  of  the  field.  It  may  be  assumed  that  the  mas 
ter  is  apprised  of  the  prohibition  of  the  law.  He  knows  equally 
well  too,  that  the  testimony  of  a  white  man  only  can  be  pro 
duced  against  him.  He  will,  of  course,  obey  the  dictate  of  com 
mon  prudence, — a  sufficient  share  of  which,  for  this  purpose, 
every  man  possesses, — and  issue  his  commands  to  the  slave  in 
the  absence  of  a  white  man.  How,  then,  can  he  be  convicted 
of  this  offence ?  or  in  what  manner  can  the  law  be  enforced? 
It  must  be  a  dead  letter.  It  can  serve  no  valuable  end.  For 
any  benefit  it  yields  the  slave,  it  might  as  well  not  have  been 
passed. 

The  same  objections  apply  to  the  clause  in  the  second  section 
which  has  been  cited,  and  which  comes  within  the  scope  of  the 
proposition  under  present  consideration,  i.  e.  "  The  requiring 
greater  labour  from  such  slave  or  slaves  than  he,  she  or  they 
are  able  to  perform."  Indeed,  the  difficulty  in  effecting  a  con 
viction  is  increased,  inasmuch  as  the  charge  is  by  the  law  of  a 
criminal  nature — every  thing  must  therefore  be  strictly  proved 
— the  law  itself  must  be  construed  strictly — and,  such  a  con 
struction,  without  doubt,  requires  that  all  the  illegal  circum 
stances  enumerated  in  the  section  should  exist  at  the  same  time, 


28 

and  be  proved  against  the  master,  to  constitute  the  single  crime 
of  cruelty  to  the  slave, 

There  is  an  obscurity  and  confusion  in  the  penning  of  this 
law,  which  will  strike  every  one  with  surprise,  who  is  not  in 
some  degree  acquainted  with  slave  laws,  There  is  an  omission 
too,  which  deserves  notice.  The  cruelty  of  the  owner  only,  is 
made  penal  in  the  section;  while  the  exaction  of  too  much  -la 
bour,  &c.  by  the  overseer  or  agent)  is  not  provided  against. 

The  negro  act  of  South  Carolina)  passed  in  1740,  contains 
the  following  language  as  restrictive  of  the  master's  power  in 
the  exaction  of  labour  from  the  slave.  I  copy,  in  addition  to  the 
enacting  part  of  the  section,  the  preamble,  since  it  serves  to 
evidence  the  abuse  which  obtained  in  this  particular,  at  a  very 
early  period,  when  the  labour  of  the  slave  was  probably  of  much 
less  value  than  it  is  at  the  present  time.  "  Whereas  many 
owners  of  slaves,  and  others  who  have  the  care,  management 
and  overseeing  of  slaves,  do  confine  them,  so  closely  to  hard 
labour,  that  they  have  not  sufficient  time  for  natural  rest: 
Be  it  therefore  enacted,  That  if  any  owner  of  slaves,  or  other 
person  who  shall  have  the  care,  management,  or  overseeing  of 
any  slaves,  shall  work  or  put  any  such  slave  or  slaves  to  labour 
more  than  fifteen  hours  in  twenty-four  hours,  from  the  twenty- 
fifth  day  of  March  to  the  twenty-fifth  day  of  September;  or  more 
than  fourteen  hours  in  twenty-four  hours,  from  the  twenty-fifth 
day  of  September  to  the  twenty -fifth  day  of  March,  every  such 
person  shall  forfeit  any  sum  not  exceeding  twenty  pounds,  nor 
under  five  pounds,  current  money,  for  every  time  he,  she  or 
they  shall  offend  herein,  at  the  discretion  of  the  justice  before 
whom  the  complaint  shall  be  made."  2  Brevard's  Digest,  243. 

In  Louisiana,  the  subjoined  act  was  passed,  July  7,  1806, 
"  As  for  the  hours  of  work  and  rest,  which  are  to  be  assigned 
to  slaves  in  summer  and  winter,  the  old  usages  of  the  territory 
shall  be  adhered  to,  to  wit:  The  slaves  shall  be  allowed  half  an 
hour  for  breakfast  during  the  whole  year;  from  the  first  day  of 
May  to  the  first  day  of  November,  they  shall  be  allowed  two 
hours  for  dinner;  and  from  the  first  day  of  November  to  the 
first  clay  of  May.  one  hour  and  a  half  for  dinner:  Provided, 
however,  That  the  owners  who  will  themselves  take  the  trouble 


29 

ot  causing  to  be  prepared  the  meals  of  their  slaves,  be,  and  they 
are  hereby  authorized  to  abridge,  by  half  an  hour  per  day?  the 
time  fixed  for  their  rest."  1  Martin's  Digest,  610-12. 

The  remarks  which  were  made,  in  relation  to  the  laws  of 
Georgia,  bear  with  equal  force  upon  those  of  South  Carolina 
and  Louisiana,  above  cited.  They  are  wholly  inoperative — in 
capable  of  being  executed — and  must,  without  doubt,  give  way 
to  the  cupidity  of  the  master,  whenever  circumstances  excite 
the  passion  for  gain.  But  to  speak  of  the  law  of  South  Carolina 
^-suppose  it  to  be  religiously  observed,  is  not  the  measure  as  to 
the  length  of  time  (for,  as  regards  the  kind  or  degree  of  labour 
no  regulation  exists,  and  it  would  be  futile  to  make  any)  exces 
sive,  and  likely  to  be  destructive  to  bodily  energy?  In  a  mat 
ter  of  this  nature,  exact  graduation  is  not  easily  attainable;  yet, 
judging  from  such  data  as  I  have  been  able  to  collect,  I  think 
myself  authorized  in  the  conclusion  that  too  much  is  permitted. 
In  the  island  of  Jamaica,  besides  many  holidays  which  are  by 
law  accorded  to  the  slave,  ten  hours  a  day  is  the  extent  of  the 
time  which  the  slave  is  compelled  ordinarily  to  work.  See 
2  Edward's  West  Indies,  book  4,  chap.  5.  Also,  Consolidated 
Slave  Jlcl  of  Jamaica,  ibid,  book  4;  Appendix,  section  18. 
The  regulations  of  penitentiaries,  in  reference  to  the  employ 
ment  of  convicts  at  hard  labour,  furnish  additional  criteria  de 
serving  of  our  attention.  And,  happily,  it  is  in  my  power  here 
to  adduce  the  authority  of  at  least  three  slave-holding  states,  viz. 
Maryland,  Virginia,  and  Georgia,  in  conjunction  with  that  of 
Pennsylvania  and  New  Jersey.  In  each  of  these  states  this  law 
has  been  adopted:  "  Such  offenders  (convicts)  unless  prevented 
by  ill  health,  shall  be  employed  in  work  every  day  in  the  year 
except  Sundays,  and  such  days  when  they  shall  be  confined  in 
the  solitary  cells;  and  the  hours  of  work,  in  each  day,  shall  be 
as  many,  as  the  season  of  the  year,  with  an  interval  of  half  an 
hour  for  breakfast  and  an  hour  for  dinner,  will  permit;  but  not 
exceeding  eight  hours  in  the  months  of  November,  December 
and  January;  nine  hours  in  the  months  of  February  and  Octo 
ber;  arid  ten  hours  in  the  rest  of  the  year.  1  Virg.  Rev.  Code? 
o24;  Prince's  Digest,  382;  Laws  of  Maryland,  Nov.  Sess. 
1809,  ch.  138,  §30;  Laws  of  New  Jersey,  revised  and  published 


30 

znl&2l,page326;  Pur  don's  Digest  of  the  Laws  of  Pennsyl 
vania,  page  324  (act  ofrfpril  5,  1790.) 

Hence  it  appears,  that  according  to  a  statute  which  was  en 
acted  upon  the  most  solemn  deliberation  by  one  legislature,  and 
which  has  been  adopted  since  by  four  other  distinct  bodies  of 
the  same  nature,  ten  hours  make  up  the  longest  space  out  of 
twenty-four  hours,  which  can  be  demanded  for  labour  from 
convicted  felons,  whose  PUNISHMENT  was  designed  to  consist 
chiefly  of  HARD  LABOUR.  Yet  the  slave  of  South  Carolina,  under 
a  law  professing  to  extend  humanity  towards  him,  may  be  sub 
jected  to  unremitting  toil  for  FIFTEEN  HOURS  within  the  same 
period ! ! 

If  we  turn  to  Louisiana,  the  condition  of  the  slave,  in  this 
particular,  will  be  found  without  melioration.  For  though  the 
purpose  of  the  act  which  I  have  transcribed,  is  declared  to  be 
to  ascertain  what  hours  are  to  be  assigned  to  the  slave  for  work 
and  REST,  the  only  rest  which  it  provides  is  half  an  hour  at 
breakfast  and  two  hours  for  dinner.  At  what  time  a  third  meal 
is  to  be  taken,  whether  at  sunset  or  at  midnight,  is  left  to  the 
master's  pleasure.  And  judging  from  our  knowledge  of  the 
mode  in  which  sugar  is  made,  and  cotton  raised  and  pressed,  it 
is  not  too  much  to  say,  that  the  going  down  of  the  sun  is  by  no 
means  the  signal  of  repose  to  the  weary  slave.*  And  let  it  not 
be  forgotten,  that  the  slave  within  the  short  time  allotted  for 
rest,  is  under  the  necessity  of  preparing  food  for  his  meals!! 

Prop.  II.  THE  MASTER  MAY  SUPPLY  THE  SLAVE  WITH  SUCH 

FOOD  AND  CLOTHING  ONLY,    BOTH  AS   TO  QUANTITY  AND  QUALI 
TY,  AS  HE  MAY  THINK  PROPER  OR  FIND  CONVENIENT. 

*  An  extract  from  a  Louisiana  newspaper,  dated  New  Orleans,  March  23, 
1826,  will  tend  in  some  measure  to  confirm  this  remark.  The  words  are  these: 
«« To  judge  from  the  activity  reigning  in  the  cotton  presses  of  the  suburbs  of 
St.  Mary,  and  the  late  hours  during  which  their  slaves  work,  the  cotton  trade  was 
never  more  brisk."  Sugar  making  is,  I  believe,  generally  more  laborious  than 
the  cultivation  of  cotton.  In  an  article  on  the  agriculture  of  Louisiana,  con 
tained  in  "  The  Western  Review,"  No.  2,  (the  editor  of  which  is  by  no  means 
unfavourable  to  slavery,)  the  following  statement  appears:  "  The  work  (sugar 
making)  is  admitted  to  be  severe  for  the  hands,  (slaves)  requiring,  when  the  pro 
cess  of  making  sugar  is  commenced,  TO  BE  PRESSED  NIGHT  AND  DAT." 


31 

Legislation,  having  a  direct  reference  to  the  subject  of  this 
proposition,  may  be  quoted  from  the  codes  of  Louisiana  and  of 
North  and  South  Carolina.  Still,  as  the  slave  is  entirely  under  the 
control  of  his  master — is  unprovided  with  a  protector — and  espe 
cially  as  he  cannot  be  a  witness,  or  make  complaint  in  any  known 
mode  against  his  master,  the  apparent  object  of  these  laws  may 
always  be  defeated.  I  might,  therefore,  spare  myself  any  further 
attention  to  this  proposition.  But,  for  the  information  of  those 
who  have  not  resided  in  a  slave  state,  I  think  fit  to  copy  the 
authentic  testimony  of  acts  of  assembly,  as  to  the  quantity  and 
quality  of  food  which  are  directed  to  be  provided  for  slaves. 
Thus  in  Louisiana,  "  Every  owner  shall  be  held  to  give  to  his 
slaves  the  quantity  of  provisions  hereafter  specified,  to  wit:  one 
barrel  of  Indian  corn,  or  the  equivalent  thereof  in  rice,  beans 
or  other  grain,  and  a  pint  of  salt,  and  to  deliver  the  same  to  the 
said  slaves  in  kind  every  month,  and  never  in  money,  under  a 
penalty  of  a  fine  of  ten  dollars  for  every  offence."  1  Martin's 
Digest,  610,  act  of  July  7,  1806.  In  North  Carolina,  a  much 
less  quantity  of  the  same  kind  of  food  is  deemed  sufficient,  as  is 
implied  from  the  following  curious  section  of  an  act  passed  in 
1753,  and  which  is  still  in  force:  "  In  case  any  slave  or  slaves, 
who  shall  not  appear  to  have  been  clothed  and  fed  according  to 
the  intent  and  meaning  of  this  act,  that  is  to  say,  to  have  been 
sufficiently  clothed,  and  to  have  constantly  received  for  the  pre 
ceding  year  an  allowance  not  less  than  a  quart  of  corn  per  day, 
shall  be  convicted  of  stealing  any  corn,  cattle,  &c.  &c.  from  any 
person  not  the  owner  of  such  slave  or  slaves,  such  injured  per 
son  shall  and  may  maintain  an  action  of  trespass  against  the 
master,  owner  or  possessor  of  such  slave,  &e.  and  shall  recover 
his  or  her  damages,  &c."  Hay  wood's  Manual,  524-5. 

The  allowance  of  clothing  in  Louisiana,  seems  to  have  been 
graduated  by  the  same  standard  by  which  the  quantity  of  food 
was  determined  in  North  Carolina.  "  The  slave  who  shall  not 
have  on  the  property  of  their  owners  a  lot  of  ground  to  cultivate 
on  their  own  account,  shall  be  entitled  to  receive  from  said 
owner  one  linen  shirt  and  pantaloons  (line  chemise  et  une  culotte 
tie  toile)  for  the  summer,  and  a  linen  shirt  and  woollen  great 
coat  and  pantaloons  for  the  winter."  I  Martin's  Digest,  610, 


32 

The  other  slave-holding  states  do  not  pretend  to  fix  the  kind 
and  quantity  of  food  and  clothing  to  be  furnished  to  the  slave: 
but  in  South  Carolina  and  in  Georgia,  the  cruelty  of  denying  to 
him  a  sufficiency  of  either,  is  attempted  to  be  guarded  against. 
That  full  justice  may  be  done  to  the  humanity  of  the  lawgivers 
of  South  Carolina,  I  extract  a  section  of  the  law  which  professes 
to  give  redress  to  the  injured  slave:  "In  case  any  person,  &c. 
who  shall  be  owner,  or  who  shall  have  the  care,  government  or 
charge  of  any  slave  or  slaves,  shall  deny,  neglect  or  refuse  to 
allow  such  slave  or  slaves  under  his  or  her  charge  sufficient 
clothing,  covering  or  food,  it  shall  and  may  be  lawful  for  any 
person  or  persons,  on  behalf  of  such  slave  or  slaves,  to  make 
complaint  to  the  next  neighbouring  justice  in  the  parish 
where  such  slave  or  slaves  live,  or  are  usually  employed;  and 
the  said  justice  shall  summons  the  party  against  whom  such 
complaint  shall  be  made,  and  shall  inquire  of,  hear  and  deter 
mine  the  same;  and,  if  the  said  justice  shall  find  the  said  coin 
plaint  to  be  true,  or  that  such  person  will  not  exculpate  or  clear 
himself  from  the '  charge,  by  his  or  her  own  oath,  which  such 
person  shall  be  at  liberty  to  do  in  all  cases  where  positive 
proof  is  not  given  of  the  offence,  such  justice  shall  and  may  make 
such  orders  upon  the  same,  for  the  relief  of  such  slave  or  slaves, 
as  he  in  his  discretion  shall  think  fit;  and  shall  and  may  set  and 
impose  a  fine  or  penalty  on  any  person  who  shall  offend  in  the 
premises,  in  any  sum  not  exceeding  twenty  pounds,  current 
money,  for  each  offence,  to  be  levied  by  warrant  of  distress  and 
sale  of  the  offender's  goods,"  &c.  &c.  2  Brcvard's  Dig.  241; 
similar  in  Louisiana,  1  Martin's  Dig.  638-40. 

Now,  as  the  slave  cannot  be  heard  as  a  witness,  it  is  not  very 
easy  to  see  how  positive  proof  as  to  the  insufficiency  of  food  can 
be  obtained;  and,  of  course,  by  the  terms  of  the  act,  the  master 
or  overseer,  by  his  oath,  may  exculpate  himself — may  answer 
the  general  charge  by  as  general  a  denial — a  matter  which  an 
intrepid  conscience,  as  all  experience  testifies,  will  easily  com 
pass. 

The  act  of  Georgia  remains  to  be  considered.  It  will  be  seen, 
by  recurring  to  the  latter  section  of  the  law  of  this  state,  upon 
which  I  adventured  a  brief  comment  while  speaking  of  \\\c  first 


proposition  of  this  chapter^  that  among  the  constituents  of  the 
crime  of  cruelty  by  the  master  to  his  slave,  are  enumerated, 
"the  withholding  proper  food  and  sustenance,"  and  "  not 
affording  proper  clothing."  For  "  withholding  proper  food 
and  sustenance,"  it  has  been  demonstrated,  I  trust,  that  the 
master  is  dispunishable.  The  proof  cannot  be  had.  Whether 
the  slave  be  properly  clothed  may,  however,  be  ascertained  by 
inspection.  But  here  it  is  necessary  to  advert  to  a  remark  al 
ready  made,  namely,  that  the  crime  of  cruelty,  -according  to  the 
legal  interpretation  of  the  section,  requires  the  co-existence  of 
all  the  illegal  circumstances  specified  in  the  act.  It  is  not 
enough  that  "proper  clothing  is  not  afforded" — proper  food  must 
be  withheld — excessive  labour  must  be  exacted — unnecessary 
and  excessive  whipping  must  be  inflicted;  and  from  all  these 
concomitant  causes,  an  effect  is  to  be  produced  and  proved, 
"  whereby,"  such  is  the  language  of  the  act,  "  the  health  of  such 
slave  or  slaves  may  be  injured  and  impaired!!" 

Upon  the  topics  of  this  proposition,  another  act  of  Georgia 
may  be  cited,  the  provisions  of  which  are  of  a  character  so  novel, 
that  I  shall  be  under  the  necessity  of  detaining  the  reader  longer 
in  its  discussion  than  is  altogether  consistent  with  the  plan  of 
this  sketch.  The  act  is  a  brief  one,  and  I  transcribe  it  entire: 
"  Section  1.  From  and  after  the  passing  of  this  act,  (December 
12,  1815,)  it  shall  be  the  duty  of  the  inferior  courts  of  the 
several  counties  in  this  state,  on  receiving  information,  on  oath, 
of  any  injtrm  slave  or  slaves  being  in  a  suffering  situation,  frooi 
the  neglect  of  the  owner  or  owners  of  such  slave  or  slaves,  to 
make  particular  inquiries  into  the  situation  of  such  slave  *?r 
slaves,  and  render  such  relief  as  they  in  their  discretion  nn-y 
think  proper. 

"  Section  2.  The  said  courts  may,  and  they  are  hereby  author 
ized,  to  sue  for  and  recover  from  the  owner  or  owners  of  such 
slave  or  slaves,  the  amount  that  may  be  appropriated  for  the  re 
lief  of  such  slave  or  slaves,  in  any  court  having  jurisdiction  of 
the  same;  any  law,  usage  or  custom  to  the  contrary  notwith 
standing."  Prince's  Digest,  460. 

By  the  terms  of  this  act,  the  relief  spoken  of  is  confined  to 
infirm  slaves.  The  purpose  of  this  restriction  1  cannot  per- 

5 


34 

ceive.  It  it>  unnecessary,  however,  to  trouble  ourselves  with 
the  inquiry,  since  to  the  professed  objects  of  its  bounty  it  is 
scarcely  possible  a  benefit  can  result.  As  a  preliminary  to  judi 
cial  investigation,  the  express  directions  of  the  first  section  re 
quire  information  to  be  given  to  the  inferior  judges  on  oath. 
I  need  not  repeat,  that  this  must  be  the  oath  of  a  white  man* 
A  flagrant  case  it  must  be,  it  will  occur  to  every  reflecting  mind, 
which  will  induce  such  a  person  to  incur  the  enmity  of  a  planter, 
by  making  a  formal  complaint,  on  oath,  before  the  judges  of  the 
court,  that  "  an  infirm  slave  is  in  a  suffering  condition  from 
the  neglect  of  his  owner."  But,  let  it  be  granted,  that  such 
complaint  has  been  preferred  by  a  competent  person;  it  is,  it 
will  be  observed,  but  an  incipient  proceeding,  and  without  the 
inadmissible  evidence  of  the  slave  himself,  how  can  the  other 
requirements  of  the  act  be  complied  with?  What  kind  of  re 
plies  can  be  expected  to  the  "particular  inquiries"  which  the 
judges  are  directed  to  make  ?  The  charge  is  a  grave  one-— it 
strikes  at  the  character  of  the  master;  the  evidence  to  support  it 
should  be  proportionately  cogent — it  should  be  incontrovertible. 

Improbable  as  I  think  I  have  shown  the  supposition  to  be,  let 
it  be  further  granted,  that  the  complaint  has  been  established  by 
evidence  satisfactory  to  the  judges,  and  that,  in  conformity  with 
the  directions  of  the  act,  they  have  proceeded  "  to  render  such 
relief  as  they,  in  their  discretion,  have  thought  proper." 

If  the  reader  be  in  any  degree  conversant  with  judicial  pro 
ceedings,  he  will  be  apt  to  conclude  that  this  latter  concession 
is  an  abandonment  of  the  argument.  And,  truly,  had  the  law 
under  examination  been  founded  on  practical  principles— had  it 
been  framed,  as  all  laws  ought  to  be,  to  answer  the  behests  of 
justice,  the  concession  would  be  open  to  this  objection.  Yet, 
unwilling  as  we  may  be  to  believe  the  reproach,  it  is  impossible 
to  shut  out  the  conviction,  that  the  makers  of  the  act  did  not  de 
sign  it  to  be  efficient ;  otherwise,  the  second  section  would  not 
have  been  appended.  This  section  gives  to  the  act,  as  has  been 
before  observed,  a  character  altogether  novel  in  jurisprudence. 
By  \\\vjirst  section,  it  will  be  recollected,  the  duty  is  imposed 
on  the  judges  of  the  inferior  courts,  after  having  made  "  parti 
cular  inquiries  into  the  situation  of  the  suffering  slave,"  loren- 


35 

such  relief  as  they  should  think  Jit.  One  would  naturally 
infer,  that  after  a  judicial  tribunal  had  solemnly  adjudged  "  re 
lief  to  be  necessary  for  AN  INFIRM  slave  in  a  SUFFERING  con 
dition  from  the  NEGLECT  of  his  owner"  that  the  hand  of  jus 
tice  would  not  be  tardy  to  enforce  the  decision.  Very  different, 
however,  were  the  sentiments  of  the  humane  legislature  of 
Georgia.  No  relief  is  administered.  The  duty  of  the  judges  is 
at  an  end,  by  the  determination  that  relief  is  necessary!  They 
cannot  order  an  execution  upon  their  judgment.  The  harvest 
should  have  been  ready  for  the  sickle — but  the  seed  has  not  been 
sown — the  ground  is  not  even  prepared  to  receive  it.  The 
judges  are  authorized  (not  commanded)  to  assume  the  unheard- 
of  character  for  judges — to  become  SUITORS  in  another  court — 
"  to  sue  for,"  says  the  second  section,  "and  recover  from  the 
owner  or  owners  of  such  slave  or  slaves,  the  amount  that  may 
be  appropriated  for  the  relief  of  such  slave. "  No  special  pro 
vision  is  made  for  the  payment  of  costs,  in  case  these  plaintiff 
judges  should,  from  defect  of  evidence,  or  from  any  other  cause, 
be  unable  to  convince  the  ulterior  court  and  jury  that  relief 
should  be  afforded.  It  results,  of  course,  that  they  must  defray 
them  from  their  private  resources,  like  all  other  unsuccessful 
parties  to  an  action.  The  delay  and  uncertainty  of  the  law, 
even  in  its  ordinary  mode  of  administration,  where  every  rea 
sonable  facility  for  investigation  is  accorded,  are  proverbial;  is 
it  to  be  expected,  then,  with  the  obstacles  to  the  execution  of 
this  act  which  have  been  pointed  out — the  exclusion  of  slave 
testimony  when  no  other  testimony  would  be  likely  to  disclose 
the  necessary  facts — the  preferment  of  the  complaint  before  one 
set  of  judges  whose  decision,  at  most,  leads  to  no  other  result 
than  that  these  judges  may  become  suitors  in  the  cause  before 
another  distinct  judicial  tribunal,  with  the  certain  inconvenience 
of  the  loss  of  time,  and  the  almost  certain  loss  of  money,  that 
a  suit  should  ever  be  terminated — or  that  it  should  be  terminat 
ed  in  favour  of  the  slave!!  Legislation  such  as  this,  is  worse 
than  mockery. 

Prop.  III.  THE  MASTER  MAY,  AT  HIS  DISCRETION,  INFLICT 

ANY  SPECIES  OF  PUNISHMENT  UPON  THE  PERSON  OF   HIS  SLAVE 


36 

If  the  power  of  the  master,  to  the  extent  here  implied,  were 
sanctioned  by  express  law,  we  should  have  no  claim  to  the  cha 
racter  of  a  civilized  people.  The  very  being  of  the  slave  would 
be  in  the  hands  of  the  master.  Such  is  not  the  case;  on  the 
contrary,  from  the  laws  which  I  shall  cite,  it  will  be  fully  evi 
dent  that  so  far  as  regards  the  pages  of  the  statute  book,  the 
life  at  least  of  the  slave,  is  safe  from  the  authorized  violence  of 
the  master.  The  evil  is  not  that  laws  are  wanting,  but  that  they 
cannot  be  enforced — not  that  they  sanction  crime,  but  that  they 
do  not  punish  it.  And  this  arises  chiefly,  if  not  solely,  from 
the  cause  which  has  been  more  than  once  mentioned — the  ex 
clusion  of  the  testimony,  on  the  trial  of  a  white  person,  of  all 
those  who  are  not  white. 

There  was  a  time  in  many,  if  not  in  all  the  slave-holding 
districts  of  our  country,  when  the  murder  of  a  slave  was  followed 
by  a  pecuniary  fine  only.  In  one  state,  a  change  of  the  law  in 
this  respect  has  been  very  recent.  At  the  present  date,  J  am 
happy  to  say,  the  wilful,  malicious  and  deliberate  murder  of  a 
slave,  by  whomsoever  perpetrated,  is  declared  to  be  punishable 
with  death  in  every  state.  James9  Digest,  392  (act  of  Decem 
ber  20,  1821);  1  Rev.  Code  Va.  616;  Hay  wood7  s  Manual, 
(N.  C.)  530  (act  o/1798);  Constitution  of  Georgia,  art.  4, 
§  12,  and  act  of  Assembly  (1817);  Prince's  Digest,  348  &  456; 
Mississippi  Rev.  Code,  297;  Missouri  Constitution,  art.  3, 
§  28,  and  act  of  July  4,  1825;  1  Missouri  Laws,  282;  Laws 
of  Tennessee,  act  of  Oct.  23,  1799,  &c.  &c. 

A  slight  difference  in  the  laws  of  the  several  states  obtains  on 
this  point,  which  is  not  unworthy  of  being  noted.  In  Virginia,* 
the  penal  code  contains  no  definition  of  murder,  as  such,  but 
impliedly  adopting  the  common  law  definition,  prescribes  the 
punishment  to  be  inflicted  for  this  crime.  Of  consequence, 
whatever  be  the  complexion  of  the  person  murdered,  or  whether 
he  be  bond  or  free,  the  law  as  to  the  guilt  of  the  offender  is  the 
same.  Act  of  March  6,  1819;  1  Rev.  Code,  616. — Similar  in 

*  The  distinction,  which  originated  in  Pennsylvania,  as  to  degrees  of  guilt  in 
the  crime  of  murder,  has  been  recognised  in  Virginia.  The  name  of  the  crime, 
however,  is  not  changed  in  either  of  these  states — it  is  in  the  punishment  only, 
that  the  distinction  is  important. 


37 

Missouri,  Constitution,  art.  3,  §  28;  and  I  Missouri  Laws, 

282,  §  3.  / 

The  conflicting  influences  of  humanity  and  prejudice  are 
strangely  contrasted  in  the  law  of  North  Carolina  on  this  sub 
ject  Section  3,  of  the  act  passed  in  1 798,  runs  thus:  "  Whereas 
by  another  act  of  assembly,  passed  in  the  year  1774,  the  killing 
of  a  slave,  however  wanton,  cruel  and  deliberate,  is  only  pun- 
ishable  in  the  first  instance  by  imprisonment  and  paying  the  value 
thereof  to  the  owner,  which  distinction  of  criminality  between 
the  murder  of  a  white  person  and  one  who  is  equally  a  human 
creature,  but  merely  of  a  different  complexion,  is  DISGRACE 
FUL  TO  HUMANITY,  AND  DEGRADING  IN  THE  HIGHEST  DEGREE 
TO  THE  LAWS  AND  PRINCIPLES  OP  A  FREE,  CHRISTIAN  AND  EN 
LIGHTENED  COUNTRY,  Be  it  enacted,  &c.  That  if  any  person 
shall  hereafter  be  guilty  of  wilfully  and  maliciously  killing  a 
slave,  such  offender  shall,  upon  the  first  conviction  thereof,  be 
adjudged  guilty  of  murder,  and  shall  suffer  the  same  punishment 
as  if  he  had  killed  a  free  man :  Provided  always,  this  act  shall 
not  extend  to  the  person  killing  a  slave  outlawed  by  virtue  of 
any  act  of  assembly  of  this  state,  or  to  any  slave  in  the  act 
of  resistance*  to  his  lawful  owner  or  master,  OR  TO  ANY  SLAVE 
DYING  UNDER  MODERATE  CORRECTION."  Haywood's  Manual, 
530;  and  see  Laws  of  Tennessee,  act  of  Oct.  23, 1799,  with  a 
like  proviso. 

The  language  of  the  constitution  of  Georgia,  art.  4,  §  12,  is 
so  nearly  similar,  that  I  transcribe  it  in  this  place,  in  order  that 
both  may  be  considered  together.  "  Any  person  who  shall  ma 
liciously  dismember  or  deprive  a  slave  of  life,  shall  suffer  such 
punishment  as  would  be  inflicted  in  case  the  like  offence  had  been 
committed  on  a  free  white  person,  and  on  the  like  proof,  ex 
cept  in  case  of  insurrection  of  such  slave,  and  unless  SUCH  DEATH 

SHOULD  HAPPEN  BY  ACCIDENT  IN  GIVING  SUCH  SLAVE  MODERATE 

CORRECTION."  Prince's  Digest,  559. 

The  glaring  inconsistency  of  the  declaration  in  the  preamble 
to  the  act  of  North  Carolina,  that  "  a  distinction  of  criminality 

*  In  reference  to  this  clause  in  the  proviso,  it  has  been  judicially  deter 
mined,  that  it  is  justifiable,  to  kill  a  slave,  resisting  or  offering  to  resist  his  mas 
ter,  by  force.  2  Haywootfs  Reports,  54. 


38 

between  the  murder  of  a  white  person  and  one  who  is  equally 
a  human  creature,  but  merely  of  a  different  complexion,  is  dis 
graceful  to  humanity,  and  degrading  in  the  highest  degree  to 
the  laws  and  principles  of  a  free,  Christian  and  enlightened  coun 
try,"  and  the  impunity  which  is  granted,  in  the  same  section, 
to  the  murderer  of  an  outlawed  slave,  needs  but  little  explana 
tion  or  comment.  To  set  the  matter,  however,  in  its  proper 
light,  it  may  be  added,  that  a  proclamation  of  outlawry*  against 
a  slave  is  authorized,  whenever  he  runs  away  from  his  master, 
conceals  himself  in  some  obscure  retreat,  and,  to  sustain  life, 
kills  a  hog)  or  some  animal  of  the  cattle  kind! !  See  Hay  wood9  s 
Manual,  521;  act  of  1741,  ch.  24,  §45. 

But  to  turn  to  another  part  of  the  proviso,  attached  to  this 
act.  To  style  the  "  correction"  of  a  slave  which  causes  DEATH, 
"moderate,"  is  a  solecism  too  monstrous  for  sober  legislation. 
And  yet  such  has  been  the  law  of  two  enlightened  states  for 
more  than  a  fourth  of  a  century;  and  the  same  provision,  with 
an  unimportant  increment,  has  been  incorporated  into  the  con 
stitution  of  a  third  state  for  an  equal  space  of  time ! !  Had  a 
statement  of  this  nature  appeared  in  the  pages  of  a  foreign 
journal,  who  is  there  among  us  that  would  not  have  indignantly 
repelled  the  charge  as  an  opprobrious  falsehood? 

There  is  another  point  of  view  in  which  this  exception,  as  to 
death  produced  by  the  moderate  correction  of  the  slave,  claims 
an  observation.  I  mean,  in  respect  to  the  protection  which  it 
throws  over  the  murderer,  when  on  his  trial  for  killing  a  slave. 
Every  one  who  has  been  the  least  attentive  to  trials  for  capital 
offences,  or  who  knows  the  human  heart,  is  well  aware  that  the 
compassion  of  a  jury  is  ever  ready  to  lay  hold  of  a  pretext  to 
save  themselves  from  the  painful  duty  of  convicting  a  fellow 
being  of  a  crime,  the  punishment  of  which  is  death.  Strong 
evidence  will  not,  therefore,  be  required  by  them  to  induce  the. 

*  The  outlawry  of  a  slave  is  not,  I  believe,  an  unusual  occurrence.  Very 
recently,  a  particular  account  was  given  of  the  killing  of  a  black  man,  not 
charged  with  any  offence,  by  a  person  in  pursuit  of  an  outlawed  slave,  owing, 
as  it  was  stated,  to  the  person  killed  not  answering  to  a  call  made  to  him  by 
the  pursuers.  Whether  the  call  was  heard  or  not,  of  course  could  not  be  ascer 
tained,  nor  did  it  appear  to  have  excited  any  inquiry. 


39 

belief  thai  the  murderer's  design  was  the  correction  of  the  slave 
—that  possibly  (and  possibilities  are  usually  urged  as  sufficient 
justification  for  acquittals,  where  life  is  in  jeopardy)  the  measure 
bestowed  was  moderate,  and  of  course  the  death  must  have  been 
accidental. 

In  South  Carolina,  (act  of  1740,)  the  legislature  having  by 
some  means  made  the  discovery,  as  they  set  forth  in  the  law, 
that  "  cruelty  is  not  only  highly  unbecoming  those  who  profess 
themselves  Christians,  but  is  odious  in  the  eyes  of  all  men  who 
have  any  sense  of  virtue  or  humanity — to  restrain  and  prevent 
barbarity  being  exercised  towards  slaves,'9  enacted,  "That  if  any 
person  whosoever,  shall  wilfully  murder  his  own  slave,  or  the 
slaves  of  any  other  person,  every  such  person  (i.  e.  the  offender) 
shall,  upon  conviction  thereof,  forfeit  and  pay  the  sum  of  seven 
hundred  pounds,  current  money,  and  shall  be  rendered  for  ever 
incapable  of  holding,  exercising,  &c.  any  office,  &c.  and  in  case 
any  such  person  shall  not  be  able  to  pay  the  penalty  and  for 
feiture  hereby  inflicted  and  imposed,  every  such  person  shall  be 
sent  to  any  of  the  frontier  garrisons  of  the  province,  or  commit 
ted  to  the  work-house  in  Charleston  for  the  space  of  seven  years, 
&c.  &c.  at  hard  labour."  2  Brev.  Dig.  241.  This  pecuniary 
mulct  was  the  only  restraint  upon  the  wilful  murder  of  a  slave 
in  this  state,  from  the  year  1740  to  the  year  1821,  a  period  of 
more  than  eighty  years.  But  wilful  murder,  in  the  sense  in 
which  the  epithet  wilful  is  here  used,  it  is  not  very  likely 
would  be  often*  perpetrated  by  the  master.  The  species  of 
murder,  the  cruelty  of  which  can  scarcely  be  exaggerated  by 

*  Perhaps  in  this  supposition  I  am  mistaken.  I  find  in  the  case  of  "  The. 
State  vs.  M'Oee,  1  JBay's  Reports,  164,  it  is  said  incidentally  by  Messrs.  Pinck- 
ney  and  Ford,  counsel  for  the  state,  "  that  the  frequency  of  the  offence  (wilful 
murder  of  a  slave)  was  owing  to  the  nature,  of  the  punishment,"  &c.  &c.  Rela 
tively,  however,  I  have  no  doubt  the  latter  species  of  this  crime,  i.  e.  murder 
by  undue,  correction,  &c.  must  have  been  much  more  common.  A  reflection 
naturally  suggests  itself  from  the  remark  of  Messrs.  Pinckney  and  Ford, 
which  I  have  here  transferred.  This  remark  was  made  in  1791,  when  the 
above  trial  took  place.  It  was  made  in  a  public  place — a  court-house — and 
by  men  of  great  personal  respectability.  There  can  be,  therefore,  no  question 
as  to  its  verity,  and  as  little  of  its  notoriely,-  nevertheless,  thirty  years  elapsed 
before  a  change  of  the  law  was  effected! ! 


40 

any  description,  and  which  there  is  a  strong  probability,  would 
be  not  unfrequently  chargeable  upon  the  master  or  his  overseer, 
is  delineated  in  another  section  of  the  same  act,  and  guarded 
against,  how  adequately,  the  reader  will  judge  for  himself,  from 
the  following  quotation :  "  If  any  person  shall,  on  a  sudden  heat 
or  passion,  or  by  undue  correction,  kill  his  own  slave,  or  the 
slave  of  any  other  person,  he  shall  forfeit  the  sum  of  three  hun 
dred  and  fifty  pounds,  current  money."  Ibid.  241. 

The  first  named  of  these  sections,  I  have  already  mentioned, 
has  been  repealed  by  an  act  of  1821,  which  punishes  the  wilful, 
malicious  and  deliberate  murder  of  a  slave,  by  death  without 
benefit  of  clergy.  The  latter  section,  so  far  as  relates  to  the 
killing  of  a  slave  on  a  sudden  heat  or  passion,  has  been  supplied 
by  an  enactment  in  the  same  year,  which  DIMINISHES  the  pecu 
niary  penalty  to  five  hundred  dollars,  but  authorizes  an  impri 
sonment  not  exceeding  six  months.  James9  Digest,  392. 

Where  the  life  of  the  slave  is  thus  feebly  protected,  his  limbs, 
as  might  be  expected,  share  no  better  fate.  I  quote  again  from 
the  act  of  1740,  of  South  Carolina.  "  In  case  any  person  shall 
wilfully  cut  out  the  tongue,  put  out  the  eye,*  castrate,  or  cruelly 
scald,  burn,  or  deprive  any  slave  of  any  limb,  or  member,  or 
shall  inflict  any  other  cruel  punishment,  other  than  by  whip 
ping  or  beating  with  a  horsewhip,  cowskin,  switch  or  small 
stick,  or  by  putting  irons  on,  or  confining  or  imprisoning 
such  slave,  every  such  person  shall,  for  every  such  offence,  for 
feit  the  sum  of  one  hundred  pounds,  current  money."  2  Bre- 
vard's  Digest,  241.  This  section  has,  as  far  as  I  have  been  able 
to  learn,  been  suffered  to  disgrace  the  statute  book  from  the  year 
1740  to  the  present  hour.  Amidst  all  the  mutations  which 
Christianity  has  effected  within  the  last  century,  she  has  not 
been  able  to  conquer  the  spirit  which  dictated  this  abominable 
law.  To  say  nothing  of  the  trifling  penalty  for  mutilation, 
what  idea  of  humanity  must  a  people  entertain,  who,  by  direct 
legislation  sanction  the  beating,  without  limit,  of  a  fellow  crea- 

*  How  different  was  the  Mosaic  law;  "  If  a  man  smite  the,  eye  of  his  servant, 
or  the  eye  of  his  maid,  that  it  perish,  he  shall  let  him  go  free  for  his  eytfs  sake" 
"  And  if  he  smite  out  his  man  servant's  tooth,  or  his  maid  servant's  tooth,  he 
shall  let  him  go  free  for  his  tooth's  sake."  Exodus,  chap.  2\,  vmes  26,  27. 


41 

ture,  with  ^Horsewhip  or  cowskin — and  the  infliction  of  any  tor 
ture  which  the  ingenuity  and  malignity  of  man  may  invent,  in 
the  application  of  irons  to  the  human  body,  and  the  perpetual  in 
carceration,  if  the  master  so  will,  of  the  unfortunate  slave,  in  a 
"  dungeon  keep,77  however  loathsome.  Such,  nevertheless,  is 
the  just  interpretation  of  this  law — a  law  too,  which  at  the  same 
time  denominates  these  very  acts  WHICH  IT  AUTHORIZES,  cruel 
punishments. 

Louisiana  has  borrowed  the  last  section  of  the  South  Carolina 
law,  with  the  exception  of  what  respects  mutilation,  and  making 
the  penalty  not  more  than  five  hundred  dollars,  nor  less  than 
two  hundred.  See  1  Martin's  Digest,  654.  Whatever  remarks, 
therefore,  were  made  upon  that  law,  will  apply  equally  to  this. 
Her  new  Civil  Code  effects  no  reformation  of  the  old  law,  but 
is  content  with  the  enunciation  of  a  general  principle,  which  is 
regarded,  no  doubt,  as  the  quintessence  of  humanity.  "  The 
slave  is  entirely  subject  to  the  will  of  his  master,  who  may  cor 
rect  and  chastise  him,  though  not  with  unusual  rigour,  nor  so 
as  to  maim  or  mutilate  him,  or  to  expose  him  to  the  danger  of 
loss  of  life,  or  to  cause  his  death."  Civil  Code  of  Louisiana, 
art.  173.  How  far  the  power  of  the  master  is  limited  by  the 
expression  unusual*  rigour,  may  be  easily  inferred,  when  it  is 
recollected  that  the  law  of  South  Carolina  last  noticed,  had  been 
in  full  force  in  Louisiana  for  many  years  before,  and  was  so  at 
the  time  when  the  Civil  Code  was  adopted. 

The  constitution  of  Mississippi  bestows  upon  the  general  as 
sembly  power  to  make  laws  to  oblige  the  owners  of  slaves  to 

*  So  lately  as  1819,  the  legislature  of  Louisiana  recognized  the  practice  of 
putting  iron  chains  and  collars  upon  slaves,  to  prevent  them  from  running 
away.  The  act  reads  thus:  "  If  any  person  or  persons,  &c.  shall  cut  or  break 
any  iron  chain  or  collar,  which  any  master  of  slaves  should  have  used  in  order 
to  prevent  the  running  away  or  escape  of  any  such  slave  or  slaves,  such  per 
son  or  persons  so  offending  shall,  on  conviction,  &c.  be  fined  not  less  than  two 
hundred  dollars,  nor  exceeding  one  thousand  dollars;  and  suffer  imprisonment 
for  a  term  not  exceeding  two  years,  nor  less  than  six  months."  Ad  of  Assem 
bly,  of  March  6,  1819— pamphlet,  page  64.  It  is  worthy  of  special  commemo 
ration,  that  the  legislature  of  the  same  state,  by  the  law  given  above  in  the 
text,  from  1  Martin's  Digest,  654,  imposes  a  much  less  penalty  for  the  infliction 
of  "  cruel  punishments,"  of  the  most  atrocious  description,  upon  the  slave. 

6 


42 

treat  them  with  humanity — to  abstain  from  all  injuries  to  them 
extending  to  life  or  limb;  and,  in  case  of  their  neglect  or  refusal 
to  comply  with  the  directions  of  such  laws,  to  have  such  slave 
or  slaves  sold  for  the  benefit  of  the  owner  or  owners.  Const. 
Mississippi,  Title  Slaves,  sect.  1 ;  Rev.  Code,  554.  In  the  ex 
ercise  of  the  power  thus  granted,  in  the  first  and  second  clauses, 
viz.  "  to  oblige  the  owners  of  slaves  to  treat  them  with  humanity, 
and  to  abstain  from  all  injuries  to  them  extending  to  life  or 
limb,"  the  general  assembly  have  passed  this  act:  "No  cruel  or 
unusual  punishment  shall  be  inflicted  on  any  slave  within  this 
state.  And  any  master  or  other  person  entitled  to  the  service 
of  any  slave,  who  shall  inflict  such  cruel  or  unusual  punishment, 
or  shall  authorize  or  permit  the  same  to  be  inflicted,  shall,  on 
conviction,  &c.  be  fined  according  to  the  magnitude  of  the 
offence,  at  the  discretion  of  the  court,  in  any  sum  not  exceeding 
five  hundred  dollars,"  &c.  Rev.  Code,  379*  (act  of  June  18th, 
1822.)  Without  the  testimony  of  the  slave,  I  again  remark,  a 
law  of  this  nature  may  be  regarded  as  nugatory.  But,  abstract 
edly  considered,  what  protection  does  it  hold  forth.  "  Cruel" 
and  "unusual,"  connected  as  they  are  by  the  disjunctive  "or," 
mean  precisely  the  same  thing,  and  will  be  so  construed  by  the 
court.  And  what  horrible  barbarities  may  be  excused  under 
the  name  of  usual  punishments,  the  reader  will  be  enabled  to 
judge  by  recurring  to  the  laws  of  South  Carolina  and  Louisiana, 
contained  on  the  preceding  pages. 

But  what  reason  can  be  alleged  for  not  putting  in  requisition 
at  once,  the  important  power,  "  to  have  slaves  sold  from  their 
owners  who  neglect  or  refuse  to  comply  with  the  directions  of 
laws  designed  to  secure  humane  treatment  to  such  slaves/'  This 
point  will  be  the  subject  of  separate  examination  hereafter,  and 
I  forbear  therefore  enlarging  upon  it  now. 

The  constitution  of  Missouri  has  gone  beyond  that  of  Missis 
sippi,  in  relation  to  the  protection  of  slaves  from  the  inhumanity 
of  their  masters ;  for  it  not  only  empowers  the  legislature  "  to 
oblige  the  owners  of  slaves  to  treat  them  with  humanity,  and  to 


*  Alabama  has  a  similar  law,  except  as  to  the  penalty,  which  is  but  one  hun 
dred  dollars.  Tbulmin's  Digest,  631. 


43 

abstain  from  all  injuries  to  them  extending  to  life  or  limb," 
•ftrt.  3,  §26,  last  clause  (1  Missouri  Laws,  48)  but  it  is  made 
its  DUTY  to  pass  suck  laws  as  may  be  necessary  for  this  pur 
pose.  If  this  injunction  be  regarded  in  its  proper  light,  it  will 
be  incumbent  on  the  legislature  to  remove  the  restriction  which 
has  been  imposed  on  the  reception  of  the  testimony  of  all  who 
are  not  whites.  As  yet,  no  law  has  been  enacted  on  the  autho 
rity  of  the  article  in  the  constitution;  on  the  contrary,  there  is 
an  act  which  confers  upon  the  master  a  new  mode  of  inflicting 
punishment  on  the  slave,  which  may  be  perverted  to  subserve 
purposes  most  cruel.  "  If  any  slave  resist  his  or  her  master, 
mistress,  overseer  or  employer,  or  refuse  to  obey  his  or  her 
lawful  commands,  it  shall  be  lawful  for  such  master,  &c.  to  com 
mit  such  slave  to  the  common  gaol  of  the  county,  there  to  re 
main  at  the  pleasure  of  the  master,  &c. ;  and  the  sheriff  shall 
receive  such  slave,  and  keep  him,  &c.  in  confinement,  at  the 
expense  of  the  person  committing  him  or  her."  1  Missouri 
Laws,  309.  While  for  the  obvious  reason,  that  the  master,  if 
cruel  and  vindictive,  can  gratify  his  disposition  in  a  manner 
less  expensive,  and  much  less  troublesome  to  him  in  its  execu 
tion,  and  more  severe  towards  his  victim,  I  do  not  think  it  pro 
bable  this  power  will  be  abused;  yet,  viewing  man  as  he  is,  no 
law  ought  to  justify  and  assist  in  the  imposition  of  a  punishment 
of  this  nature,  to  be  prosecuted  to  any  extent  which  a  wicked 
heart  may  desire. 

Upon  a  fair  review  of  what  has  been  written  on  the  subject 
of  this  proposition,  the  result  is  found  to  be — That  the  master's 
power  to  inflict  corporal  punishment  to  any  extent,  short  of  life 
and  limb,  is  fully  sanctioned  by  law,  in  all  the  slave-holding 
states — that  the  master,  in  at  least  two  states,  is  expressly  pro 
tected  in  using  the  horsewhip  and  cowskin,  as  instruments  for 
beating  his  slave — that  he  may,  with  entire  impunity,  in  the 
same  states,  load  his  slave  with  irons,  or  subject  him  to  perpetual 
imprisonment  whenever  he  may  so  choose — that  for  cruelly 
scalding,  wilfully  cutting  out  the  tongue,  putting  out  an  eye, 
and  for  any  other  dismemberment,  improved,  a  fine  of  one  hun 
dred  pounds  currency  only  is  incurred  in  South  Carolina — that 
though  in  all  the  states  the  wilful,  deliberate  and  malicious  mur- 


44 

der  of  the  slave  is  now  directed  to  be  punished  with  death,  yet> 
as  in  the  case  of  a  white  offender,  none  except  whites  can  give 
evidence,  a  conviction  can  seldom,  if  ever,  take  place, 

Prop.  IV.  ALL  THE  POWER  OF  THE  MASTER  OVER  THE  SLAVE 

MAY  BE  EXERCISED,  NOT  BY  HIMSELF  ONLY  IN  PERSON,  BUT  BY 
ANY  ONE  WHOM  HE  MAY  DEPUTE  AS  HIS  AGENT. 

Louisiana  is  the  only  state  in  which  an  act  of  assembly  has 
been  passed  on  this  topic.  The  language  of  the  act  may  be 
cited,  as  an  appalling  definition  of  slavery  itself.  "  The  condi 
tion  of  a  slave  being  merely  a  passive  orie,  his  subordination  to 
his  master,  and  to  all  who  represent  him,  is  not  susceptible  of 
any  modification  or  restriction,  (except  in  what  can  incite  the 
slave  to  the  commission  of  crime,)  in  such  manner,  that  he  owes 
to  his  master  and  to  all  his  family  a  respect  without  bounds  and 
an  absolute  obedience,  and  he  is  consequently  to  execute  all  the 
orders  which  he  receives  from  him,  his  said  master,  or  from 
them."  1  Martin's  Digest,  616. 

In  the  other  slave-holding  states,  the  subjoined  extract  from 
Mr.  Stephen's  delineation  of  slavery  in  the  West  Indies,  will, 
it  is  believed,  accurately  express  the  law  and  the  practice.* 

*  A  case  is  reported  among  the  decisions  in  the  supreme  court  of  appeals  in 
Virginia,  which,  while  it  confirms  the  text,  proves  how  wantonly  this  power 
may  be,  and  is  abused.  The  statement  prefixed  to  the  opinion  of  the  court  is 
in  these  words:  "  May  brought  an  action  of  trespass  vi  et  armis,  in  the  Peters 
burg  district  court,  against  the  appellants,  (Broivn  &?  Boisseau,}  for  breaking 
and  entering  his  close,  and  beating  several  of  his  slaves,  in  the  declaration  named, 
so  that  he  was  deprived  of  their  services  for  a  long  time,  and  throwing  down  his 
enclosures  round  his  field,  whereby  his  wheat,  then  and  there  growing,  was 
trodden  down  and  injured  by  a  great  number  of  cattle  and  horses,  &c.  &c.  A 
bill  of  exceptions  states,  that  on  the  trial  the  defendants  offered,  in  mitigation 
of  damages,  the  testimony  of  a  witness,  tending  to  prove  that  the  plaintiff  had 
given  a  general  permission  to  Brown,  one  of  the  defendants,  to  VISIT  his  negro  quar 
ters,  and  to  chastise  any  of  his  slaves  who  might  be  found  acting  improperly."  This 
evidence  was  rejected,  not  that  it  was  in  itself  improper,  but  on  technical  objec 
tions,  one  of  which  was,  that  it  was  offered,  and  according  to  the  state  of  the 
pleadings,  if  received,  would  go  to  the  defence  of  both  Brown  and  Soisseau, 
whereas  THE  PERMISSION  was  granted  to  BROWN  only,-  and  the  beating,  as  had 
been  previously  shown,  had  been  inflicted  solely  by  BOISSEATJ — "to  whom," 
continues  the  report,  "  it  was  admitted  no  such  permission  had  been  given." 
See  1  Munford's  Reports,  288,  Broum  &  Boisseau  vs.  May.  What  more  flagrant 


45 

"  The  slave  is  liable  to  be  coerced  or  punished  by  the  whip,  and 
to  be  tormented  by  every  species  of  personal  ill-treatment,  sub 
ject  only  to  the  exceptions  already  mentioned,  (L  e.  the  depri 
vation  of  life  or  limb,)  by  the  attorney,  manager,  overseer, 
driver,  and  every  other  person  to  whose  government  or  control 
the  owner  may  choose  to  subject  him,  as  fully  as  by  the  owner 
himself.  Nor  is  any  special  mandate  or  express  general  power 
necessary  for  this  purpose;  it  is  enough  that  the  inflictor  of  the 
violence  is  set  over  the  slave  for  the  moment,  by  the  owner, 
or  by  any  of  his  delegates  or  sub-delegates,  of  whatever  rank 
or  character.79  Stephen's  Slavery,  page 46. 

This  power  of  deputation  by  the  master  is  one  of  the  degrad 
ing  and  distinguishing  features  of  negro  slavery.  It  was  not 
permitted  by  the  law  of  villanage.  "  The  villein  might  have 
an  action  against  any  man  but  his  lord  for  beating  him,  except 
for  just  cause;  and  it  was  no  legal  defence  in  such  action,  to 
plead  that  it  was  done  by  the  command  of  the  lord. "  9  Coke's 
Reports,  76 1/?.  and  see  Stephen's  supra. 

The  most  common  delegate  of  the  master  is  known  by  the 
appellation  of  "  overseer."  A  description  of  this  class  of  beings, 
is  furnished  by  Mr.  Wirt,  in  his  life  of  Patrick  Henry,  page 
34.  Coming  from  this  source,  there  is  no  reason  to  suspect  the 
character  to  be  surcharged  with  cruelty,  and  the  following  ex 
tract  is  in  the  words  of  that  author:  "  Last  and  lowest,  (i.  e.  of 
the  different  classes  of  society  in  Virginia,)  zfecuhtm  of  beings 
called  '  overseers' — the  most  abject,  degraded,  unprincipled 
race — always  cap  in  hand  to  the  dons  who  employed  them,  and 
furnishing  materials  for  the  exercise  of  their  pride,  insolence, 
and  spirit  of  domination." 

Prop.  V.    SLAVES  HAVE  NO  LEGAL  RIGHTS  OF  PROPERTY  IN 

THINGS  REAL  OR  PERSONAL,  AND,  WHATEVER  PROPERTY  THEY 
MAY  ACQUIRE,  BELONGS,  IN  POINT  OF  LAW,  TO  THEIR  MASTERS. 

abuse  of  the  master's  power  of  delegation  could  be  practised  than  this — to 
grant  a.  general  permission  to  one  not  in  the  function  of  an  overseer,  or  general 
deputy,  to  superintend  the  employment,  &c.  of  the  slaves,  (for  this  character 
is  plainly  denied  to  Brown,  inasmuch  as  he  is  charged  with  having  broken  the 
close  of  May,  i.  e.  entered  unlawfully,  without  his  consent,  upon  his  premises,) 
to  visit  his  negro  quarters,  and  to  chastise  any  of  his  slaves  who  might  be  found 
acting  improperly! ! ! 


46 

Of  negro  slavery  only,  can  this  harsh  doctrine  be  affirmed. 
Among  the  Romans,  the  Grecians  and  the  ancient  Germans, 
slaves  were  permitted  to  acquire  and  enjoy  property  of  consi 
derable  value,  as  their  own.  "The  Polish  slaves,  even  prior 
to  any  recent  alleviations  of  their  lot,  were  not  only  allowed  to 
hold  property  but  were  endowed  with  it  by  their  lords." 
Stephen's  Slavery,  fyc.  59,  citing  WraxalVs  Memoirs,  2  voL 
letter  21.  In  the  Spanish  and  Portuguese  colonies,  the  money 
and  effects  which  a  slave  acquires  by  his  labour  at  times  set 
apart  for  his  own  use,  or,  by  other  honest  means,  are  legally 
his  own  and  cannot  be  seized  by  his  master.  Ibid  60.  And 
even  in  the  British  West  India  Islands,  where  the  condition  of 
slavery  on  the  whole,  is  not  perhaps,  less  severe  than  it  is  in 
the  slave-holding  sections  of  the  United  States,  and,  where  in 
truth,  the  unwritten  law  is  as  above  stated  in  this  proposition, 
yet,  the  feelings  of  the  community  there  forbid  its  enforcement 
by  the  master.  Since,  however,  to  deprive  the  slave  of  any 
little  articles  of  property  which  he  might  obtain,  by  the  exer 
cise  of  his  industry  and  skill,  in  the  few  moments  of  leisure 
occasionally  indulged  to  him,  has  been  thought  of  sufficient  im 
portance  to  call  for  solemn  acts  of  the  general  assemblies  in  our 
slave-holding  states,  there  seems  but  little  reason  to  believe, 
that  humanity  has  opposed  their  execution  and  established  a 
better  practice  there.  I  insert  various  acts  of  assembly,  which 
will  evidence,  in  what  light  this  subject  is  viewed  in  the  states, 
so  often  alluded  to.  Thus  in  South  Carolina:  "  It  shall  not  be 
lawful  for  any  slave  to  buy,  sell,  trade,  &c.  for  any  goods,  &c. 
without  a  license  from  the  owner,  &c.  nor  shall  any  slave  be 
permitted  to  keep  any  boat,  periauger*  or  canoe,  or  raise  and 

*  Periaugua  as  this  word  should  be  spelled,  is  thus  defined,  in  the  Ency 
clopaedia,  (first  American  edition,  published  by  Mr.  Dobson ;)  "  a  sort  of 
large  canoe  made  use  of  in  the  Leeward  Islands,  South  America  and  the  Gulf 
of  Mexico.  It  is  composed  of  the  trunks  of  two  trees  hollowed  and  united 
together;  and  thus  differs  from  the  canoe  which  is  formed  of  one  tree."  In 
this  country,  the  distinction  here  mentioned,  between  a  canoe  and  periaugua, 
is  not  always  observed — In  "  a  series  of  letters  from  Timothy  Flint,  principal 
of  the  Seminary  of  Rapide,  Louisiana,  to  the  Rev.  James  Flint,  of  Salem, 
Mass.  I  find  the  periaugua,  described,  as  "  a  vessel  of  from  two  to  four  tons 
burthen,  hollowed,  sometimes  from  one  prodigious  tree,  or  from  the  trunks  of 
two  trees  united,  and  a  plank  rim  fitted  to  the  upper  part." 


47 

breed,  for  the  benefit  of  such  slave,  any  horses,  mares,  cattle, 
sheep  or  hogs,  under  pain  of  forfeiting  all  the  goods,  &c.  and 
all  the  boats,  periaugers  or  canoes,  horses,  mares,  cattle,  sheep, 
or  hogs.  And  it  shall  be  lawful  for  any  person  whatsoever,  to 
seize  and  take  away  from  any  slave,  all  such  goods,  &c.  boats, 
&c.  &c.  and  to  deliver  the  same  into  the  hands  of  any  justice  of 
the  peace,  nearest  to  the  place,  where  the  seizure  shall  be  made, 
and  such  justice  shall  take  the  oath  of  the  person  making  such 
seizure,  concerning  the  manner  thereof;  and  if  the  said  justice 
shall  be  satisfied  that  such  seizure  has  been  made  according  to 
law,  he  shall  pronounce  and  declare  the  goods  so  seized,  to  be 
forfeited,  and  order  the  same  to  be  sold  at  public  outcry,  one  half 
of  the  monies  arising  from  such  sale  to  go  to  the  state,  and  the 
other  half  to  him  or  them  that  sue  for  the  same. "  James'  Digest, 
385-6.  Jlct  of  1740. 

The  act  of  the  legislature  of  Georgia,  is  in  nearly  the  same 
words.  Prince's  Digest,  453.  And,  lest  perchance,  the  bene 
volence  of  the  master,  should  sometimes  permit  the  slave  to 
hire  himself,  to  another  for  his  own  benefit,  Georgia  has  im 
posed  a  penalty  of  thirty  dollars  "for  every  weekly  offence, 
on  the  part  of  the  master,  unless  the  labour  be  done  on  his  own 
premises."  Prince's  Dig.  457.  So,  in  Kentucky,  with  a 
slight  modification,  2  Lift.  4*  Swi.  Digest,  1159-60.  See 
Mississippi  Rev.  Code,  375,  and  Laws  of  Tennessee,  Oct.  23, 
1813,  chap.  135. 

And  in  Virginia,  if  the  master  shall  permit  his  slave  to  hire 
himself  out,  it  is  made  lawful  for  any  person  and  the  duty  of 
the  Sheriff,  &c.  to  apprehend  such  slave,  &c.  and  the  master 
shall  be  fined  not  less  than  ten  dollars,  nor  more  than  twenty, 
&c.  1  Rev.  Code,  374-5,  Similar,  2  Missouri  Laws,  743,  and 
see  Haywood's  Manual,  534. 

As  early  as  the  year  1779,  North  Carolina  interposed  as  fol 
lows:  "  Ml  horses,  cattle,  hogs  or  sheep,  that  one  month 
after  the  passing  of  this  act,  shall  belong  to  any  slave  jr  be 
of  any  slave's  mark,  in  this  state,  shall  be  seized  and  sold 
by  the  County  Wardens,  and  by  them  applied,  the  one-half 
to  the  support  of  the  poor  of  the  county,  and  the  other  half 
to  the  informer."  Haywood's  Manual,  526.  See  Missis- 


48 

sippi  Rev.  Code,  378,  and  Kilty's  Laws  of  Maryland,  act 
of  1723,  chap.  15,  §6. 

In  Maryland,  by  act  of  JLpril  sessions,  1787,  chap.  33, 
"  any  person  who  shall  permit  and  authorize  any  slave  belong^ 
ing  to  him  or  herself,  &c.  to  go  at  large  or  hire  himself  or  her 
self,  within  this  state,  shall  incur  the  penalty  of  five  pounds, 
(thirteen  and  one-third  dollars,)  current  money  per  month,  ex 
cept  ten  days  at  harvest  This  penalty  was  increased  to  twenty 
dollars,  excepting  however,  an  additional  ten  days  in  harvest. 
Act  of  December  sessions,  1817,  chap.  104,  §1.  By  both 
acts,  a  slave  being  a  pilot,  is  not  included  within  the  prohi 
bition. 

In  Mississippi  a  slave  is  forbidden  to  cultivate  cotton  for  his 
own  use,  and,  should  the  master  permit  him  to  do  so,  he  incurs 
a  fine  of  fifty  dollars.  Miss.  Rev.  Code,  379. 

And,  "  if  any  master,  &c.  of  a  slave  license  such  slave  to  go 
at  large  and  trade  as  a  freeman,  he  shall  forfeit  the  sum  of  fifty 
dollars  for  each  and  every  offence.  Mississippi  Rev.  Code, 
374, — and  see  2  Missouri  Laws,  743.  Also,  Kilty7 s  Laws  of 
Maryland,  act  of  <April,  1787,  chap.  33.  An  equal  fine  is 
imposed  upon  a  master,  convicted  of  permitting  his  slave  to 
keep  "  stock  of  any  description:"  act  of  January  29,  1825, 
pamph.  laws  of  Mississippi  of  1825. 

The  civil  code  of  Louisiana  coincides  with  the  text  in  the  fol 
lowing  manner  :  "  all  that  a  slave  possesses  belongs  to  his 
master — he  possesses  nothing  of  his  own,  except  his  peculium, 
that  is  to  say,  the  sum  of  money  or  moveable  estate,  which  his 
master  chooses  he  should  possess." — <ftrt.  175,  and  see,  1 
Martin's  Digest,  616.  "  Slaves  are  incapable  of  inheriting  or 
transmitting  property."  Civil  Code,  art.  945.  "  Slaves  cannot 
dispose  of  or  receive  by  donation  inter  vivos  or  mortis  causa,  un 
less  they  have  been  previously  and  expressly  enfranchised  con 
formably  to  law,  or  unless  they  are  expressly  enfranchised  by  the 
act,  by  which  the  donation  is  made  to  them."  *ftrt.  1462.  "The 
earnings  of  slaves  and  the  price  of  their  service,  belong  to  their 
owners,  who  have  their  action  to  recover  the  amount  from  those 
who  have  employed  them."  Louisiana  Code  of  Practice^ 
art.  103. 


49 

*The  decisions  of  the  courts  confirm  the  doctrine*  of  these 
acts  of  assembly; — as  in  South  Carolina,  where  it  was  held, 
"That  slaves  cannot  take  property  by  descent  or  purchase,  4 
Dessatissure' 's  Chancery  Reports,  266,  By  num.  vs.  Bostwick. 
—And,  in  North  Carolina, — "  Slaves  cannot  take  by  sale,  or 
devise,  or  descent.  And,  a  devise  of  land,  to  be  rented  out 
for  the  maintenance  of  a  slave,  was  adjudged  to  be  void.  1 
Cameron's  and  Norwood's  Reports,  353 — same  decision,  1 
Taylor's  Reports,  209.  — Also,  in  Maryland,  a  gift,  bequest, 
or  devise  made  to  a  slave,  by  any  one  not  his  owner,  would  be 
void.  See  Dulany's  opinion,  1  Maryland  Reports,  561. 
Though  in  this  last  state,  such  a  devise  of  real  or  personal 
estate,  made  by  the  owner  of  the  slave,  has  been  held  to  entitle 

*  There  is  an  isolated  case,  of  pretty  early  date,  (determined  in  the  Su 
preme  Court  of  South  Carolina.  See  1  Bay's  Reports,  260-3.  The  Guardian 
of  Sally,  a  negro  vs.  Scatty,}  which  is  too  interesting-  in  several  points  of 
view  to  be  passed  by  unnoticed.  It  is  in  opposition  to  the  spirit  of  the  laws, 
and  to  other  later  decisions  of  the  courts,  on  which  account,  if  no  other  rea 
son  could  be  assigned,  it  would  be  necessary  to  insert  it.  An  outline  of  the 
facts  of  the  case,  is  thus  given  by  the  reporter.  "  This  was  a  special  action, 
in  nature  of  ravishment  of  ward,  to  establish  the  freedom  of  a  negro  girl, 
according  to  the  form  prescribed  by  the  act  of  the  legislature  for  that  pur 
pose.  The  case  was  this:  a  negro  wench  slave,  the  property  of  the  defen 
dant,  by  working  out  in  town,  with  permission  of  her  master,  had  by  her  in 
dustry,  acquired  a  considerable  sum  of  money,  over  and  above  what  she 
had  stipulated  to  pay  for  her  monthly  wages  to  her  master,  and  having  an 
affection  for  a  negro  girl,  Sally,  she  purchased  her  with  this  mofiey  which 
she  had  been  for  years  accumulating,  and  gave  her  her  freedom.  For  a  con 
siderable  time  after  the  purchase  was  made,  the  defendant  never  claimed  any 
property  in  the  negro  girl, — never  paid  taxes  for  her,  but  on  the  contrary, 
acknowledged  he  had  no  property  in  her.  Some  short  time,  however,  before 
the  commencement  of  the  present  action,  when  called  upon  to  deliver  up  the 
girl,  as  free,  he  refused ;  in  consequence  of  which,  this  action  was  brought. 
The  court  charged  the  jury  in  favour  of  the  plaintiff.  Chief  Justice  Rutledge, 
saying,  in  conclusion,  '  If  the  wench  chose  to  appropriate  the  savings  of  her 
extra  labour  to  the  purchase  of  this  girl,  in  order,  afterwards  to  set  her  free, 
would  a  jury  of  the  country  say  No  ! !  He  trusted  not.  They  were  too  hu 
mane  and  upright,  he  hoped  to  do  such  manifest  violence  to  so  singular  and 
extraordinary  an  act  of  benevolence.' — The  jury,  without  retiring  from  the 
box,  returned  a  verdict  for  the  plaintiff's  ward,  and  she  was  set  at  liberty," 
Which  of  these  was  neighbour  to  the  oppressed  negro  girl  ? 

7 


50 

the  slave  to  freedom,  as  the  implied  intention  of  the  owner; 
Hall  vs.  Mullin,  5  Harris  and  Johnson's  Reports,  1 90. 

Prop.  VI.    THE  SLAVE  BEING  "  A  PERSONAL  CHATTEL/'  is 

AT  ALL  TIMES,  LIABLE  TO  BE  SOLD  ABSOLUTELY,  OR  MORTGAG 
ED  OR  LEASED,    AT  THE  WILL  OF  HIS  MASTER. 

After  what  has  been  said,  with  respect  to  the  master's  power 
over  his  slave,  it  may  seem  to  be  of  but  little  consequence  to 
the  slave,  whether  he  remain  for  life,  subject  to  one  and  the 
same  master,  or  be  transferred  successively  to  many  others, 
As  far  as  the  master's  treatment  towards  him  is  concerned,  this 
conclusion  may  be  taken  as  generally  correct.  But  it  must  not 
be  forgotten  that  the  slave  is  a  human  being,  and  although  his 
degraded  condition  may  have  blunted,  or  perhaps  destroyed  the 
nicer  sensibilities  of  our  nature,  yet,  is  he  susceptible  of  many 
of  the  feelings  which  attach  those  of  the  same  species  to  each 
other,  and  even  to  insensate  objects.  *fls  man,  he  must  be 
alive  to  the  ties  of  consanguinity  and  affinity.  *fts  man,  he 
must  know  what  friendship  is.  *fts  man,  it  is  scarcely  possible 
he  should  not  feel  an  attachment  even  to  place.  And  as  man, 
the  indulgence  of  these  feelings,  cannot  fail  to  contribute  large 
ly  to  his  happiness.  To  be  torn  from  such  endearments,  with 
out  the  hope  of  a  restoration,  and  yet  live,  must  inflict  a  pang, 
agonizing  beyond  description.  The  terror  which  his  master's 
presence  inspires,  renders  those  of  his  own  condition  more 
dear.  Nevertheless,  in  the  slave-holding  states,  except  in 
Louisiana,  no  law  exists  to  prevent  the  violent  separation  of 
parents  from  their  children,  or  even  from  each  other.*  In  most 

*  One  of  the  abolition  acts  of  Pennsylvania,  (act  of  29th  March,  1788), 
contains  this  provision:  "  If  any  owner  or  possessor  of  any  negro  or  mulatto 
slave  or  slaves,  or  servant  or  servants,  for  a  term  of  years,  shall,  from  and 
after  the  first  day  of  June  next,  separate  or  remove,  or  cause  to  be  separated 
or  removed,  a  husband  from  his  wife,  a  wife  from  her  husband,  a  child  from 
his  or  her  parent,  or  a  parent  from  a  child,  of  any  or  either  of  the  descrip 
tions  aforesaid,  to  a  greater  distance  than  ten  miles,  with  the  design  and  in 
tention  of  changing  the  habitation  or  place  of  abode  of  such  husband  or  wife, 
parent  or  child,  unless  such  child  shall  be  above  the  age  of  four  years,  or 
unless  the  consent  of  such  slave,  &c.  shall  have  been  obtained  and  J:estified{as 
herein  before  described,  (5.  e.  by  acknowledgment  before  a  magistrate,  &c.) 


51 

other  countries  in  which  slavery  is  tolerated,  the  slave  is  em 
ployed  in  the  cultivation  of  the  soil,  and  cannot,  by  sale,  be 
detached  from  it.  Such  is  the  case,  in  the  Spanish,  in  the  Por 
tuguese,  and  even  in  the  French  colonies.  The  Code  Noir, 
art.  47,  (I  quote  from  Stephen,  not  having  the  code  before  me,) 
prohibits  the  selling  of  the  husband  without  the  wife,  the  pa 
rents  without  the  children,  or  vice  versa.  In  voluntary  sales, 
made  contrary  to  this  regulation,  the  wife  or  husband,  children 
or  parent,  though  expressly  retained  by  the  seller,  pass  by  the 
same  conveyance  to  the  purchaser,  and  may  be  claimed  by  him 
without  any  additional  price.*  See  Stephen' 's  Slavery ,  &c.  69, 
If  the  humanity  of  the  French  has  adopted  this  law,  why 
should  not  the  citizens  of  our  republics  imitate  so  good  an  exam 
ple?  But  it  is  foreign  to  my  plan,  to  dwell  longer  on  this  topic, 
I  pass  to  a  kindred  proposition, — the  source  of,  perhaps,  greater 
evil. 

Prop.  VII.   THE  SLAVE  is  AT  ALL  TIMES  LIABLE  TO  BE  SOLD, 

BY  PROCESS  OP  LAW,  FOR  THE  SATISFACTION  OF  THE  DEBTS  OF 
A  LIVING,  OR  THE  DEBTS  AND  BEQUESTS  OF  A  DECEASED  MAS 
TER,  AT  THE  SUIT  OF  CREDITORS  OR  LEGATEES. 

In  the  British  West  Indies,  where  the  law  is  similar  to  that 
which  is  expressed  in  this  proposition,  well-informed  writers 
seem  to  regard  the  sales  of  slaves  by  process  of  law,  as  produc 
tive  of  more  cruel  consequences  than  those  which  arise  from 
voluntary  alienation.  Mr.  Bryan  Edwards,  who,  it  will  be 

such  person  or  persons  shall  severally  forfeit  and  pay  the  sum  of  fifty  pounds, 
with  costs  of  suit,  for  every  such  offence,  to  be  recovered  by  action  of  debt, 
&c.  8cc.  at  the,  suit  of  any  person  who  will  sue  for  the  same,  one  moiety,  &,c. 
for  the  use  of  the  plaintiff,"  &c.  There  is  but  little  humanity,  however,  in 
this  provision. — Slaves  separated  from  each  other  by  a  distance  of  ten  miles, 
might  never  see  each  other. — Besides  the  separation  of  children,  from  their 
parent,  after  four  years  of  age,  is  unwarrantable  cruelty. 

*  "  This  law,"  says  the  Compiler  of  the  annals  of  the  sovereign  Council  of 
Martinique,  "  has  always  been  rigidly  executed,  whenever  a  claim  has  been 
set  up,  on  the  part  of  the  purchaser.  I  have  known  slaves  who  have  been 
sent  to  Guadaloupe,  or  St.  Domingo,  to  be  expatriated  and  sold,  to  reclaim 
their  children  remaining  in  our  colony,  with  success,  through  the  action  of 
the  purchasers  in  the  colonies  to  which  they  were  sent."  See  Stephen's 
Slavery,  69  and  70,  citing  Annalcs  de  la  Martinique,  tome  1,  p.  285, 


52 

recollected,  was  the  champion  of  slavery  and  of  the  slave 
trade,  in  his  History  of  the  West  Indies,  vol.  2,  book  4,  chap, 
5,  after  speaking  of  certain  regulations  which  had  been  proposed 
for  the  melioration  of  slavery,  uses  this  language:  "But  these 
and  all  other  regulations  which  can  be  devised  for  the  protec 
tion  and  improvement  of  this  unfortunate  class  of  people,  will 
be  of  little  avail,  unless,  as  a  preliminary  measure,  they  shall 
be  exempted  from  the  cruel  hardships  to  which  they  are  fre 
quently  liable,  of  being  sold  by  creditors,  and  made  subject,  in 
a  course  of  administration  by  executors,  to  the  payment  of  all 
debts,  both  of  simple  contract  and  speciality."  This  he  stig 
matises  as  a  "  grievance  remorseless  and  tyrannical  in  its 
principles,  and  dreadful  in  its  effects" — the  revival  "  in  a 
country  that  pretends  to  Christianity  of  the  odious  severity  of 
the  Roman  law,  which  declared  sentient  beings  to  be  inter  res — 
a  practice  injurious  to  the  national  character,  and  disgraceful  to 
humanity.  A  good  negro,"  continues  he,  "  with  his  wife  and 
young  family  rising  about  him,  is  seized  on  by  the  sheriff's  offi 
cer,  forcibly  separated  from  his  wife  and  children,  dragged  to 
public  auction,  purchased  by  a  stranger,  and  perhaps  sent  to 
terminate  his  miserable  existence  in  the  mines  of  Mexico ;  and 
all  this  without  any  crime  or  demerit  on  his  part,  real  or  pre 
tended.  He  is  punished  because  his  master  is  unfortunate." 

It  would  be  in  vain  for  me  to  attempt  to  augment  the  horror 
which  every  well-regulated  mind  must  feel  from  this  eloquent 
description  of  the  cruelty  of  this  law.  For  humanity's  sake,  I 
rejoice  to  say,  that  the  sphere  of  its  operation  is  by  no  means 
co-extensive  with  the  prevalence  of  slavery.  With  the  excep 
tion  of  the  British  colonies  in  the  West  Indies,  and  I  suppose 
at  Demarara,  and  perhaps  in  the  small  islands  belonging  to  the 
Dutch,  it  obtains  only  in  the  republican  states  of  North  Ame 
rica!!*  And  here  again  I  recur  to  Mr.  Stephen,  as  ample 

*  From  the  generality  of  this  remark,  the  state  of  Louisiana  must  be  except- 
ed.  It  will  be  recollected,  that,  at  the  beginning  of  this  chapter,  a  law  was 
extracted  from  the  Civil  Code  of  the  state,  by  which  slaves  are  declared  to  be 
real  estate — to  be  ranked  among  immoveable  property.  When,  therefore,  the 
owner  of  slaves  is,  as  I  presume  is  most  commonly  the  case,  possessed  of  land, 
the  slave  cannot  be  separated  from  it  by  process  of  law.  Besides  this  humane 
regulation,  there  are  several  others,  which  deserve  to  be  signalized,  viz.  "  If, 


53 

authority.  "  Of  the  liability,"  says  he,  "  of  slaves  to  be  seized 
and  sold  separate  from  the  land  they  cultivate,  by  the  master's 
creditors,  for  the  payment  of  his  debts — it  may  safely,  I  believe, 
be  pronounced,  that  a  precedent  to  such  cruel  injustice  is  not  to 
be  found  in  any  part  of  the  old  world."  "  Plantation  slaves, 
not  only  in  the  Spanish  and  Portuguese,  but  in  the  French  colo 
nies  also,  are  real  estate,  and  attached  to  the  soil  they  cultivate, 
partaking  therewith  all  the  restrainsts  upon  voluntary  alienation 
to  which  the  possessor  of  the  land  is  there  liable,  and  they  can 
not  be  seized  or  sold  by  creditors  for  satisfaction  of  the  debts  of 
the  owner."  It  has  already  been  stated,  that  by  the  Code  Noir, 
art.  47,  the  husband  cannot  be  sold  without  the  wife,  nor  the 
parents  without  the  children.  "  Sales  made  contrary  to  this 
regulation,  by  process  of  law  under  seizure  for  debts,  are  de 
clared  void."  See  Stephen's  Slavery,  fyc.  68-9. 

Since,  then,  from  what  has  been  said  upon  this  and  upon  the 
last  preceding  proposition,  it  appears  no  restraint  (except  a  par 
tial  one  in  the  state  of  Louisiana)  is  imposed  upon  the  sale 
and  transfer  of  slaves* — but  that  these  may  take  place,  not  only 
at  the  will  of  the  master,  but  against  his  will — by  process  of  law, 
8?c~  sufficient  authority  is  at  once  disclosed  for  the  prosecution, 

at  a  public  sale  of  slaves,  there  happen  to  be  some  who  are  disabled  through 
old  age  or  otherwise,  and  who  have  children,  such  slaves  shall  not  be  sold  but 
with  such  of  his  or  her  children  whom  he  or  she  may  think  proper  to  go  with." 
1  Martin's  Digest,  612,  act  of  July  7, 1806. 

"  Every  person  is  expressly  prohibited  from  selling  separately  from  their 
mothers,  the  children  who  shall  not  have  attained  the  full  age  of  ten  years." 
Ibid.  These  provisions  have  probably  been  suggested  by  a  knowledge  of  the 
much  more  humane  ones  which  are  comprised  in  the  Code  Noir  of  Louis  XIV. 
extracts  from  which  are  given  in  the  text  of  the  former  proposition.  I  call  the 
Code  Noir  much  more  humane,  for  though  the  slaves  disabled  by  old  age,  8tc. 
according  to  the  Louisiana  law,  are  not  to  be  sold  apart  from  their  children 
without  their  consent,  yet  the  master  may  retain  them  and  sell  their  children, 
and  thus  the  like  painful  separation  be  effected. 

*  This,  as  most  of  the  remarks  in  this  work,  applies  exclusively  to  those 
states  in  which  laws  for  the  abolition  of  slavery  have  not  been  enacted.  For, 
in  these  latter  states,  at  least,  whenever  the  abolition  of  slavery  has  been,  by  a 
law,  gradual  in  its  operation,  it  has  been  found  necessary  to  prevent  slaves 
from  being  carried  out  of  their  respective  limits.  And  in  Delaware,  though 
a  slave-holding  state,  slaves  cannot  be  exported  from  the  state  without  the 
license  of  two  justices  of  the  court  of  quarter  sessions.  Ad  of  June  14,  1793, 
ch.  20. 


54 

to  any  extent,  of  the  inter-territorial  slave  trade  which  exists 
among  us.  Many  of  the  slave-holding  states,  however,  while 
they  permit  their  citizens  to  sell  their  slaves  to  whom  they 
please,  and  to  carry  them  where  they  please,  yet,  for  reasons  of 
policy,  have  found  it  expedient  to  enact  laws  to  prohibit,  in  a 
great  measure,  the  further  introduction  of  them  into  their  re 
spective  limits.  Laws  with  this  aspect,  have  been  enacted  in 
the  states  of  Delaware,  Maryland,  North  and  South  Carolina, 
Tennessee,  Kentucky,  Georgia,  and  Louisiana.  The  act  of  as 
sembly  of  North  Carolina,  which,  being  one  of  the  earliest,* 
has  probably  served  as  a  precedent  in  the  other  states,  deserves 
particular  commemoration,  and  I  therefore  transcribe  those  sec 
tions  which  are  important  to  the  present  inquiry:  "  From  and 
after  the  first  day  of  May  next,  no  slave  or  indented  servant  of 
colour  shall  be  imported  or  brought  into  this  state  by  land  or 
water;  nor  shall  any  slave  or  indented  servant  of  colour,  who 
may  be  imported  or  brought  contrary  to  the  intent  and  mean 
ing  of  this  act,  be  bought,  sold  or  hired  by  any  person  what 
ever. 

"  Section  2.  Every  person  importing  or  bringing  slaves  or 
indented  servants  of  colour  into  this  state,  after  the  said  first  day 
of  May  next,  by  land  or  water,  contrary  to  the  provisions  of 
this  act,  shall  forfeit  and  pay  the  sum  of  one  hundred  pounds 
for  each  and  every  slave  or  indented  servant  of  colour  so  im 
ported  or  brought.  And  every  person  who  shall  knowingly 
sell,  buy  or  hire  such  slave  or  indented  servant  of  colour,  shall, 
in  like  manner,  forfeit  and  pay  the  sum  of  one  hundred  pounds 
jfor  each  and  every  slave,  &c. ;  one  moiety  of  which  forfeiture 
shall  be  to  the  use  of  the  state,  and  the  other  moiety  to  him  or 
them  who  shall  sue  for  the  same,  &c. 

**  Section  3.  It  shall  be  the  duty  of  all  justices  of  the  peace, 
sheriffs,  coroners,  constables  or  other  judicial  and  ministerial 
officers  of  this  state,  to  use  all  reasonable  and  lawful  means  to 
carry  this  act  into  effect;  which  if  they  or  any  of  them  neglect 


*  The  law  of  Delaware  bears  date  a  few  years  anterior  to  that  of  North  Caro 
lina,  but  the  provisions  of  the  act  of  the  latter  state  have  been  adopted,  with 
but  little  variation,  in  the  other  states. 


55 

to  do,  it  shall  be  deemed  a  misdemeanor  in  office.  And  any 
officer  who  shdl  fail,  neglect  or  refuse  upon  application,  to  per 
form  the  duties  aforesaid,  shall  be  held  and  deemed  liable  to  the 
foreitures  inflicted  on  those  who  may  import  or  bring  a  slave 
or  indented  servant  of  colour  into  this  state  in  the  first  instance, 
and  shall  be  proceeded  against  in  the  like  manner  and  to  the  like 
effect." 

To  the  generality  of  this  prohibition  the  following  exceptions 
are  added: 

"  Section  4.  Nothing  in  this  act  shall  be  construed  to  prevent 
any  person  or  persons,  being  citizens  of  the  United  States,  or 
subjects  or  citizens  of  foreign  countries,  who  intend  to  reside  and 
settle  within  the  limits  of  this  state,  from  bringing  with  him, 
her  or  them,  such  slaves  or  servants  of  colour  as  they  may  think 
proper ;  or  to  prevent  such  persons  from  travelling  with  their 
slaves,  &c.  through  this  state,  in  order  to  settle  in  another  state; 
or  to  prohibit  any  citizen  of  this  state,  who  may  obtain  slaves, 
&c.  by  marriage,  gift,  legacy,  devise  or  descent;  or  who  hath 
heretofore  entered  into  bona  fide  contracts,  from  bringing  the 
slaves  or  servants  of  colour  so  obtained  or  contracted  for,  into  this 
state,  by  land  or  water."  And  in  order  to  guard  against  an  abuse 
of  the  privileges  conferred  by  these  exceptions,  it  is  made  the 
duty  of  the  persons  coming  within  them  to  make  oath,  that  the 
slaves  introduced  are  not  intended  for  traffic,  nor  in  evasion  of  the 
act  of  assembly  above  cited.  Hay  wood's  Manual,  533-4,  act  of 
1794,  chap.  2.  And  see  2  Brevard's  Digest,  256  to  261  inclu 
sive,  (actsoflSQO,  1802  #1803,);  Laws  of  Maryland,  act  of 
1796,  chap.  67;  Laws  of  Delaware,  act  of  1787,  chap.  145, 
§  7,  and  act  of  1789,  ch.  193;  2  Litt.  Sf  Swi.  II G2,  act  of  1815; 
Prince's  Digest,  373-4,*  act  of  1817;  Louisiana,  act  of  1826, 
(see  pamphlet  laws. ) 

The  number  of  slaves  admissible  into  the  above  states,  in  vir 
tue  of  the  proviso,  as  to  persons  removing  with  slaves  into  the 
state,  and  in  favour  of  those  who  may  derive  them  by  gift,  de- 

*  The  African  slave  trade  was  prohibited  in  Georgia  in  1798,  by  an  article 
of  her  constitution,  art.  4,  §  11.  But  it  was  not  until  1817,  that  the  act  of  the 
legislature  was  procured  for  the  prohibition  of  the  inter-territorial  traffic. 


56 

scent,  marriage  or  devise,  it  is  probable  would  not  greatly  aug 
ment  this  species  of  population.  It  must,  however,  be  evident, 
that  while  every  coloured  person  is  presumed  to  be  a  slave,  and 
while  a  transfer  of  such  is  permitted  without  restraint  among 
citizens  of  the  same  state,  no  matter  how  remote  in  distance 
may  be  the  places  of  their  respective  residences,  that  it  cannot 
be  very  difficult,  especially  with  the  pretext  which  is  supplied 
by  the  proviso,  to  introduce  within  the  extensive  limits  of  most 
of  the  above  states,  as  many  slaves  as  any  one,  lured  by  a  high 
price,  may  choose.  At  the  present  time,  I  presume  there  is 
but  little  temptation  to  prosecute  this  traffic,  in  the  states  where 
the  prohibitory  law  has  been  adopted;  for  a  mart  is  open  in  the 
new  states  of  Alabama,  Mississippi  and  Missouri,  and  in  the 
territories  of  East  and  West  Florida,  Arkansas  and  Missouri, 
which  is  not  likely  to  be  glutted  for  many  years  to  come.  And 
even  Virginia,*  after  having,  in  the  year  1778,  enacted  an 

*  Between  the  years  1699  and  1772,  the  legislature  of  Virginia  passed  nu 
merous  acts  to  discourage,  the  importation  of  slaves.  The  means  resorted  to 
for  this  purpose,  was  the  imposition  of  a  considerable  duty  on  imported 
slaves.  See  2  Tucker's  Blackstone,  Appendix,  49,  50.  The  royal  negative  was  ex 
ercised  in  relation  to  several  of  these  acts,  and  it  is  abundantly  demonstrated 
by  Judge  Tucker,  that  a  direct  effort  by  the  colony  would  have  been  entirely 
unavailing.  The  fate  of  an  act  of  this  description,  which  was  attempted  by  the 
assembly  of  Pennsylvania,  in  the  year  1712,  might  be  cited  as  additional  proof 
of  this  disposition  on  the  part  of  the  crown.  At  the  period  of  our  revolution, 
a  strong  conviction  of  the  impolicy  and  inhumanity  of  the  traffic  in  slaves, 
seems  to  have  existed  in  Virginia.  And  in  the  year  1778,  as  is  stated  in  the 
text,  an  entire  inhibition  of  the  importation  of  slaves  within  her  borders,  except 
such  as  might  be  brought  by  emigrants  to  the  state,  or  might  be  derived  by 
her  citizens  from  descent,  marriage  or  devise,  took  place.  This  humane  act, 
after  having  undergone,  by  subsequent  legislatures,  several  revisions  and  slight 
mutations,  without  materially  affecting  its  principles,  was,  in  the  year  1819, 
almost  wholly  annulled — wholly  it  could  not  be,  from  the  paramount  force  of 
the  constitution  and  laws  of  the  United  States.  How  humiliating  the  contrast 
which  is  exhibited  by  the  provisions  of  this  act  of  1819,  and  the  following  quo 
tation  from  the  preamble  to  the  constitution  of  this  state,  promulgated  on  the 
29th  June,  1776:  "  Whereas  George  the  third,  king,  &c.  heretofore  entrusted 
with  the  exercise  of  the  kingly  office  in  this  government,  hath  endeavoured 
to  pervert  the  same  into  a  detestable  and  insupportable  tyranny,  by  prompting 
our  negroes  to  rise  in  arms  among  us,  those  very  negroes,  whom,  BY  AN  INHUMAN 

USE  QF  HIS  NEGATIVE,  HE  HATH  REFUSED  US  PERMISSION  TO  EXCLUDE  BY  LAW." 


57 

inhibition  of  the  importation  of  slaves,  with  a  few  exceptions, 
within  her  borders,  has  recently  resumed  her  ancient  policy, 
and  now  proclaims  her  willingness  to  receive  all  those,  not  con 
victed  of  crimes,  who  have  been  "  born  within  the  United 
States,  or  any  territory  thereof,  or  within  the  District  of  Colum 
bia."  1  Rev.  Code,  421-2,  act  0/1S19. 

I  will  conclude  my  observations  on  the  subject  of  this  and  the 
next  preceding  section,  by  holding  up  for  the  imitation  of  those 
whom  it  may  concern,  the  conduct  of  the  aborigines  of  our 
country,  whom,  in  courtesy  to  those  for  whom  this  is  written,  I 
shall  style  savages.  Speaking  of  the  Seminole  Indians,  the 
author  of  a  small  work,  published  at  Charleston,  South  Carolina, 
in  the  year  1822,  entitled  "  Notices  of  East  Florida,  with  an 
account  of  the  Seminole  nation  of  Indians,  by  a  recent  tra 
veller  in  the  Province,"  says:  "  Another  trait  in  their  charac 
ter,  is  their  great  indulgence  to  their  slaves.  Though  hunger 
and  want  be  stronger  than  even  the  sacra  fames  auri,  the  great 
est  pressure  of  these  evils  never  occasions  them  to  impose  oner 
ous  labours  on  the  negroes,  or  to  dispose  of  them,  though  tempted 
by  high  offers,  if  the  latter  are  umvilling  to  be  sold. " 

Prop.  VIII.  ASLAVE  CANNOT  BE  A  PARTY  BEFORE  A  JUDICIAL 
TRIBUNAL  IN  ANY  SPECIES  OF  ACTION,  AGAINST  HIS  MASTER, 
NO  MATTER  HOW  ATROCIOUS  MAY  HAVE  BEEN  THE  INJURY 
WHICH  HE  HAS  RECEIVED  FROM  HIM. 

In  a  former  part  of  this  chapter,  the  several  laws  which  pro 
fess  to  give  redress  to  the  slave  for  cruelty  inflicted  upon  him 
by  his  master,  were  brought  together,  their  principles  discussed, 
and  their  inefficacy  exposed. — By  none  of  these,  it  will  be  per 
ceived,  however,  could  the  slave  appear  in  any  capacity  against 
his  master,  and  therefore,  though  they  may  seem  to  have  some 
connexion  with  this  proposition,  I  do  not  deem  it  fit  or  neces 
sary  to  make  any  comment  upon  them  in  this  place.  — The  law 
is  unquestionably,  as  stated  above,  without  any  exception  or 
limitation. 

Prop.  IX.  SLAVES  CANNOT  REDEEM  THEMSELVES,  NOR  OB 
TAIN  A  CHANGE  OP  MASTERS,  THOUGH  CRUEL  TREATMENT  MAY 

8 


58 

HAVE  RENDERED  SUCH  CHANGE  NECESSARY  FOR  THEIR  PERSON 
AL  SAFETY. 

This  proposition  holds  good,  as  to  the  right  of  redemption 
in  all  the  slave-holding  states, — and  equally  true  is  it,  as  re 
spects  the  right  to  compel  a  change  of  masters,  except  in 
Louisiana.  The  new  civil  code  of  that  state,  contains  a  regu 
lation  by  which  the  latter  privilege  may  sometimes,  perhaps, 
be  obtained  by  the  slave.  Yet  the  conditions  upon  which  its 
extension  to  the  slave  depends,  are  such,  that  it  needs  strong 
proof  to  induce  the  belief  that  the  law  has  ever  been  called  into 
action.  For  it  requires  as  preliminaries — First,  that  the  master 
be  convicted  of  cruelty, — a  task  so  formidable,  that  it  can 
hardly  be  ranked  among  possibilities;  and,  secondly,  it  is  af 
terwards,  optional  with  the  judge,  whether  or  not,  to  make 
the  decree  in  favour  of  the  slave. — I  extract  the  article  of  the 
code,  which  is  in  these  words ;  "  No  master  shall  be  compelled 
to  sell  his  slave,  but  in  one  of  t\vo  cases,  to  wit:  the  first,  when 
being  only  co-proprietor  of  the  slave,  his  co-proprietor  demands 
the  sale,  in  order  to  make  partition  of  the  property;  second, 
when  the  master  shall  be  CONVICTED  of  cruel  treatment  of  his 

Slave,   AND  THE  JUDGE  SHALL  DEEM    IT   PROPER    to  pronounce, 

besides  the  penalty  established  for  such  cases,  that  the  slave 
shall  be  sold  at  public  auction,  in  order  to  place  him  out  of  the 
reach  of  the  power  which  his  master  has  abused."  <flrt.  192. 

The  constitution  of  Mississippi,  as  we  have  before  seen, 
empowers  the  legislature  to  enact  a  law  for  the  benefit  of  the 
slave  in  this  particular,*  yet,  though  the  subject  of  cruelty  by 
the  master  to  his  slave  has  claimed  a  portion  of  their  attention, 
the  humane  design  of  the  constitution  has  been  disregarded. 
This  neglect,  not  only  in  Mississippi,  but  in  all  the  slave-hold 
ing  states,  is  the  more  remarkable,  inasmuch,  as  in  the  codes  of 
several  of  these  same  states,  a  provision  of  this  nature  exists  for 
the  cases  of  indented  servants  and  apprentices.  See  particu 
larly,  Prince's  Digest,  458.  Such  a  regulation,  every  one  who 
will  take  the  trouble  to  reflect  on  the  subject,  must  consider  in 
dispensable  for  the  slave's  protection. — What  a  mockery  must  it 

*  See,  supra,  page  42. 


59 

be  to  pass  laws  professedly  to  punish  the  master's  cruelty  to  his 
slave,  if  the  slave  is  still  to  be  left  in  the  power  of  the  same 
master,  exasperated  by  the  punishment  and  disgrace  which  must 
ensue  from  conviction. — "  Would  you,"  said  Mr.  Randolph,  in 
his  speech,  delivered*  in  the  house  of  representatives,  on  the 
imprisonment  of  the  Spanish  officers  in  Florida,  "  would  you 
send  a  slave  who  had  been  abused  by  his  overseer  to  that  very 
overseer  for  protection." 

Prop.  X.  SLAVES  BEING  OBJECTS  OF  PROPERTY,  IF  INJURED 

BY  THIRD  PERSONS,  THEIR  OWNERS  MAY  BRING  SUIT  AND  RE 
COVER  DAMAGES  FOR  THE  INJURY. 

This  is  a  maxim  of  the  common  law,  with  respect  to  proper 
ty  in  general,  and  it  may,  therefore,  be  assumed  to  be  the  law 
of  all  the  slave-holding  states,  in  regard  to  slaves  also.  Taken 
strictly,  it  does  not  operate  as  a  shield  to  the  slave  against  cor 
poral  aggression,  unless  the  violence  used  is  so  great  as  to  de 
teriorate  the  property  of  the  master.  And  so,  a  decision  of 
the  supreme  court  of  Maryland,  has  established  the  law  to  be, 
in  that  state.  "  There  must  be,  a  loss  of  service,  or  at  least, 
a  diminution  of  the  faculty  of  the  slave  for  bodily  labour,  to 
warrant  an  action  by  the  master.  1  Harris  and  Johnson's  Re 
ports,  4.  Cornfute  vs.  Dale. 

A  case,  the  report  of  which  may  be  found  in  2  Bay's  Re 
ports,  70,  by  the  name  of  Sims  White  vs.  James  Chambers, 
was  decided  by  the  constitutional  court  of  appeals  in  South  Ca 
rolina,  in  the  year  1796,  by  which  the  master  was  enabled  to 
sustain  his  suit  against  a  third  person,  for  a  corporal  injury  to 
his  slave,  although  a  loss  of  service  was  not  alleged  in  the  de 
claration.  The  following  is  the  statement  prefixed  to  the  case, 
by  the  reporter. — "  Special  action  in  the  case  for  beating  the 
plaintiff's  negro  man.  It  came  out  in  evidence  on  the  trial, 
that  the  negro  in  question,  had  the  care  of  his  master's  fishing 
canoe,  on  Sullivan's  Island,  when  the  defendant  went  down  to 
the  landing  place,  where  it  was,  and  said  he  would  take  it  and 
go  out  fishing  in  it.  The  negro  told  him  he  could  not  have  it, 

*  February  2nh,  1822. 


60 

as  his  master  had  given  him  orders  to  let  no  one  take  it  away, 
as  he  was  in  the  constant  habit  of  using  it  himself,  and  he  ex 
pected  him  down  every  minute  to  go  out  in  it.  The  defendant, 
however,  persisted  in  taking  it  away,  and  the  negro  in  obey 
ing  his  master's  orders  in  refusing  to  let  him  have  it:  upon 
which  some  high  words  passed  between  them  on  both  sides, 
whereupon  the  defendant  struck  him  a  blow  with  his  fist,  and 
then  took  up  a  paddle,  which  was  in  the  canoe,  and  knocked, 
him  down,  and  afterwards  beat  him  very  severely,  which 
laid  him  up  for  several  days,  before  he  was  able  to  go  about 
his  master's  business  again.7'  Having  given  the  reader  this 
statement  of  the  facts,  in  the  case,  it  is  fit  that  I  should  gratify  his 
curiosity  by  a  faithful  record  of  the  verdict.  He  will,  then, 
be  enabled  to  form  some  estimate  of  the  degree  of  protection, 
which  is  derived  by  the  slave  from  his  owner's  right  of  action 
against  third  persons  for  brutal  violence  to  the  slave.  The  jury 
"found  a  verdict,  for  .five  pounds  sterling,  and  costs  of  suit!  1" 

Let  not  the  jury  only,  be  reproached  with  [this  verdict.  A 
whole  community  are  implicated  with  them.  A  section  of  the 
negro  act  of  1740,  which  was  in  force  when  this  decision  was 
given,  and  is,  indeed,  the  law  of  South  Carolina  at  the  present 
hour,  has  fixed  a  measure  of  damages,  which  fully  sustains  the 
conduct  of  the  jury.  "If  any  negro  or  other  slave,  who  shall 
be  employed  in  the  lawful  business  or  service  of  his  master, 
owner,  overseer,  &c.  shall  be  beaten,  &c.  by  any  person  or 
persons,  not  having  sufficient  cause  or  lawful  authority  for  so 
doing,  and  shall  be  maimed  or  disabled  by  such  beating,  from 
performing  his  or  her  work,  such  person  and  persons  so  offend 
ing,  shall  forfeit  and  pay,  to  the  owner  or  owners  of  such 
slave,  the  sum  of  fifteen  shillings  current  money,  per  diem, 
for  every  day  of  his  lost  time,  and  also  the  charge  of  the  cure 
of  such  slave."  2  Brevard's  Digest,  231-2. 

I  do  not  find  any  provision  on  this  subject,  among  the  laws  of 
the  other  slave-holding  states,  except  in  Louisiana,  where  an 
act  of  assembly,  in  most  respects  analagous  to  that  which  I 
have  cited  from  the  code  of  South  Carolina,  has  been  passed 
with  a  special  penalty  adapted  for  the  benefit  of  the  master, 
where  the  injury  to  the  slave  is  of  a  most  aggravated  charac- 


61 

ter.  For  "  if  the  slave,"  (maimed,  fyc.)  be  forever  rendered 
unable  to  work,  the  offender  shall  be  compelled  to  pay  the 
value  of  said  slave,  according  to  the  appraisement  made  by  two 
freeholders,  appointed  by  each  of  the  parties;  and  the  slave 
thus  disabled,  shall  be  forever  maintained  at  the  expense  of  the 
person  who  shall  have  thus  disabled  him,  which  person  shall  be 
compelled  to  maintain  and  feed*  him  agreeably  to  the  duties  of 
masters  towards  their  slaves,  as  ordered  by  this  act. "  1  Martin's 
Digest,  630-2. 

From  the  abstract  of  the  cases  decided  in  Maryland  and  in 
South  Carolina,  and  especially  from  the  laws  which  I  have  here 
quoted,  it  will  be  perceived  that  the  protection  of  slaves,  from 
the  violent  and  wanton  assaults  of  those,  not  their  masters,  &c. 
is  scarcely  to  be  looked  for,  as  a  consequence  of  the  master's 
right  to  be  compensated  for  the  deterioration  of  his  property 
in  the  slave.  The  purpose  of  these  laws,  is  not,  in  truth,  the 
protection  of  the  slave,  but  the  vindication  of  the  master's  rights 
of  property.!  And  yet  in  slave-holding  countries,  this  right 
of  action  in  the  master,  is,  not  unfrequently,  proclaimed  to  be 
a  sufficient  protection  to  the  slave:  it  would  be  more  just  to  say, 
that  it  is  the  only  one  which  is  accorded  to  him. 

Prop.  XI.  SLAVES  CAN  MAKE  NO  CONTRACT. 

Besides  such  of  the  laws  referred  to  under  Proposition  V.  of 
this  chapter  as  relate  to  this  proposition,  it  may  be  added,  that 
a  slave  cannot  even  contract  matrimony — the  association  which 
takes  place  among  slaves,  and  is  called  marriage,  being  properly 
designated  by  the  word  contubernium — a  relation  which  has  no 
sanctity,  and  to  which  no  civil  rights  are  attached.  "  A  slave 
has  never  maintained  an  action  against  the  violator  of  his  bed. 
A  slave  is  not  admonished  for  incontinence,  or  punished  for 
fornication  or  adultery;  never  prosecuted  for  bigamy,  or  petty 
treason  for  killing  a  husband  being  a  slave,  any  more  than  ad- 

*  See  as  to  food  and  clothing,  supra,  pages  28-9. 

\  By  an  extreme  refinement  of  this  principle,  it  has  been  held,  in  North 
Carolina,  that  "  patrols  are  not  liable  to  the  master,  for  inflicting  punishment 
on  his  slave,  unless  their  conduct  clearly  demonstrates  MALICE  AGAIJJTST  THE 
MASTER.  1  Hawk's  Reports,  418.  Tote  vs.  O'Neal. 


62 

mitted  to  an  appeal  for  murder."  Opinion  of  Daniel  Dulany, 
Esq.  Attorney  General  of  Maryland,  1  Maryland  Reports, 
561,  563. 

Prop.  XII.  SLAVERY  is  HEREDITARY  AND  PERPETUAL. 

This  is  not  merely  a  corollary  from  the  clause  of  the  act  of 
assembly  which  was  extracted  near  the  beginning  of  this  chap 
ter,  but  is  the  effect  of  an  express  declaration  found  in  the  same 
act  of  assembly,  which,  having  been  already  transcribed,  need 
not  be  here  inserted. 

That  a  child  should  be  deprived  of  any  of  its  natural  rights 
in  consequence  of  its  parents'  misfortunes,  is  surely  not  the  de 
duction  of  reason  from  any  known  principle  applicable  to  the, 
social  condition  of  man.  Yet  the  hereditary  nature  of  slavery 
has  probably  been  an  incident  of  the  institution,  in  every  age 
and  among  every  people,  where  the  institution  has  been  tole 
rated.  *  It  was  so  with  the  Hebrews,  both  before  and  after  the 
Mosaic  dispensation — it  was  so  with  them  during  their  bondage 
to  the  Egyptians, — the  Helots  of  Sparta,  and  the  Roman  slave, 
suffered  the  like  injustice. 

But  the  perpetuity  of  slavery,— the  natural  product  of  its  in 
heritable  quality, — received  a  check  by  the  Mosaic  polity.  The 
Israelites  having  been  miraculously  freed  from  the  yoke  of  the 
Egyptians,  it  was  ordained  in  unequivocal  terms,  that  a  Hebrew 
should  not  retain  his  brother  whom  he  might  buy  as  a  servant 
more  than  six  years,  against  his  consent,  but  that  in  the  seventh 
year  he  should  go  out  free,  for  nothing.  If  he  came  by  himself 
he  should  go  out  by  himself;  if  he  were  married  (when  he  came) 
his  wife  should  go  out  with  him.  Exodus,  ch.  21,  v.  2,  3.  Deut. 
ch.  15,  v.  12.  Jeremiah,  ch.  34,  v.  13. 

*  In  Massachusetts,  "  several  negroes  born  in  this  country  of  imported  slaves, 
demanded  their  freedom  of  their  masters  by  suits  at  law,  and  obtained  it  by 
judgments  of  the  courts."  See  Winchenden  vs.  Hatfield,  &?e.  4  Massachusetts  Re 
ports,  128.  But  these  cases  can  hardly  be  ranked  as  exceptions  to  the  general 
allegation  in  the  text.  They  appear  to  have  been  the  effect  of  collusion  be 
tween  the  masters  and  the  slaves.  For,  according  to  Chief  Justice  Parsons, 
"  the  defence  of  the  master  was  faintly  made,  for  such  was  the  temper  of  the 
times,  that  a  restless  discontented  slave  was  worth  little,  and  when  Ms  freedom 
was  obtained  in  a  course  of  legal  proceedings,  the  master  was  not  holden  for  his 
fitture  support,  if  he  became  poor." 


68 

Besides  this  important  regulation,  Hebrew  slaves  were,  with 
out  exception,  restored  to  freedom  by  the  jubilee.  I  am  aware 
that  the  authority  of  respectable  names  may  be  avouched  for  the 
opinion,  that  the  benefit  of  the  jubilee,  as  to  this  particular,  was 
enjoyed  by  all  classes  of  bondmen,  according  to  the  literal  im 
port  of  the  command:  "  Ye  shall  hallow  the  fiftieth  year,  and 
proclaim  liberty  throughout  all  the  land,  and  UNTO  ALL  THE 
INHABITANTS  THEREOF."  Leviticus,  ch.  25,  v.  10.  With  an 
anxious  desire  to  sustain  this  opinion,  if  tenable,  it  appears  to  me, 
that  not  only  was  such  a  privilege  not  required  by  the  general 
purpose  for  which  the  jubilee  was  appointed,  but  the  positive 
language  of  the  44,  45  and  46th  verses  of  the  same  chapter,  for 
bids  such  an  inference. 

It  seems,  however,  highly  probable,  that  the  term  perpetual, 
in  its  proper  and  absolute  sense,  was  not  applicable  to  the  sla 
very  by  the  Israelites  even  of  the  heathen  nations.  For  the 
command  was  given  to  Abraham,  and  was  not  abrogated  by 
Moses,  that  "  he  that  is  born  in  thy  house,  and  he  that  is  bought 
with  thy  money,  must  be  circumcised."  Genesis,  ch.  17,  v.  13, 
Jewish  commentators  agree,  that  this  command  was  strictly  con 
strued  and  carried  faithfully  into  practice.  Thus,  it  is  said  by 
Maimonides,  "  Whether  a  servant  be  born  in  the  power  of  an 
Israelite,  or  whether  he  be  purchased  from  the  heathen,  the  mas 
ter  is  to  bring  them  both  into  the  covenant.  But  he  that  is 
born  in  the  house  is  to  be  entered  upon  the  eighth  day,  and  he 
that  is  bought  with  money  on  the  day  on  which  the  master  re 
ceives  him,  unless  the  slave  be  unwilling.  For,  if  the  master 
receives  a  grown  slave,  and  he  be  unwilling,  his  master  is  to 
bear  with  him,  to  seek  to  win  him  over  by  instruction,  and  by 
love  and  kindness,  for  one  year;  after  which,  should  he  refuse 
so  long,  it  is  forbidden  to  keep  him  longer  than  the  twelve 
month,  and  the  master  must  send  him  back  to  the  strangers  from 
whence  he  came,  for  the  GOD  of  Jacob  will  not  accept  any 
other  than  the  worship  of  a  willing  heart. "  Maimon.  Hilcoth 
Miloth,  chap.  1,  sect.  8.  See  Gill's  Exposition  of  the  Old  and 
New  Testaments,  fyc. 

And,  according  to  Genesis,  chap.  17,  ver.  10,  compared  with 
jRomans,  chap.  4,  ver.  11,  by  the  rite  of  circumcision,  the  re- 


64 

elpient  was  consecrated  to  the  service  of  the  true  GOD.  See 
3  Home's  Introd.  to  Crit.  Study  of  the  Holy  Scriptures,  413, 
And  on  such  a  one  were,  in  consequence,  conferred  nearly  all 
the  rights  of  a  son  of  Abraham.  "  Although,"  says  the  respect 
able  author  last  quoted,  "  the  constitution  of  the  Jewish  polity, 
and  the  laws  of  Moses,  allowed  no  other  nations  to  participate 
in  their  sacred  rites,  yet  they  did  not  exclude  from  them  such 
persons  as  were  willing  to  qualify  themselves  for  conforming  to 
them.  Hence,  they  admitted  proselytes,  who  renounced  the 
worship  of  idols  and  joined  in  the  religious  services  of  the  Jews, 
although  they  were  not  held  in  the  same  estimation  as  Jews  by 
birth,  descent  and  language. "  Ibid.  255. 

Notwithstanding  the  bearing  of  these  authorities,  I  would  not 
be  thought  to  speak  of  the  conclusion  which  they  tend  to  esta 
blish,  with  a  confidence  approximating  to  positiveness.  The 
dealings  of  the  Almighty  with  the  heathen  nations,  through  the 
instrumentality  of  his  chosen  people  the  Israelites,  is  a  subject 
not  to  be  discoursed  upon  with  the  freedom  of  ordinary  criti 
cism.  And  on  this  point  especially — what  effect  had  proselytism 
on  the  condition  of  heathen  slaves  held  by  Hebrews,  there  is  an 
obscurity  which  leaves  the  mind  unsatisfied. 

But  whether  or  not  the  proselyte  heathen  slave  became  enti 
tled  to  freedom  at  the  jubilee,  is  of  no  importance  to  us,  so  far 
as  we  are  concerned  in  respect  to  our  duties  to  the  enslaved. 
•fts  to  us,  there  exists  no  people  who  can  be  called  heathen,  in 
the  sense  in  which  that  appellation  was  used  by  the  Israelites. 
The  master  and  the  slave  are  of  the  same  class — are  both  Gen 
tiles.  The  only  legitimate  inference,  therefore,  which  in  a  com 
parison  with  the  Mosaic  regulations  analogy  furnishes,  is,  that 
our  conduct  to  slaves  should  be  the  same,  as  was  the  conduct  of 
the  Israelites  to  Hebrew  slaves. 


65 


CHAPTER  III. 

OP  THE  CONDITION  OP  THE  SLAVE  CONSIDERED  AS  A  MEMBER  OP 
CIVIL  SOCIETY. 

To  speak  of  a  slave  as  a  member  of  civil  society  may,  by  some, 
be  regarded  a  solecism.  Such  a  condition,  however,  is  recog 
nized  by  the  laws  of  the  slave-holding  states.  To  what  extent, 
and  for  what  purpose,  it  is  recognised,  will  be  sufficiently  mani 
fested,  in  the  course  of  this  chapter;  which,  for  the  sake  of  per 
spicuity,  will  be  arranged  and  examined  under  the  following 
titles: 

I.  A  slave  cannot  be  a  witness  against  a  white  person,  either 
in  a  civil  or  criminal  cause. 

II.  He  cannot  be  a  party  to  a  civil  suit. 

III.  The  benefits  of  education  are  withheld  from  the  slave. 

IV.  The  means  for  moral  and  religious  instruction  are  not 
granted  to  the  slave ;  on  the  contrary,  the  efforts  of  the  humane 
and  charitable  to  supply  these  wants  are  discountenanced  by 
law. 

V.  Submission  is  required  of  the  slave,  not  to  the  will  of  his 
master  only,  but  to  that  of  all  other  white  persons. 

VI.  The  penal  codes  of  the  slave-holding  states  bear  much 
more  severely  upon  slaves  than  upon  white  persons. 

VII.  Slaves  are  prosecuted  and  tried  upon  criminal  accusa 
tions  in  a  manner  inconsistent  with  the  rights  of  humanity. 

I.  A  SLAVE  CANNOT  BE  A  WITNESS  AGAINST  A  WHITE  PER 
SON,  EITHER  IN  A  CIVIL  OR  CRIMINAL  CAUSE. 

I  have  had  occasion,  very  frequently,  to  advert  to  this  sub 
ject,  as  the  cause  of  the  greatest  evils  of  slavery.  Acts  of 
assembly  apparently  intended  to  give  protection  to  the  slave 
from  his  master's  cruelty,  have  been  adduced,  and  yet  shown 
to  be  altogether  nugatory,  in  consequence  of  the  rule  of  law 
which  forms  the  title  of  this  section.  In  truth,  in  our  slave- 

9 


66 

holding  states,  this  exclusion  is  not  confined  to  the  evidence  of 
slaves,  but  natives  of  Africa,  and  their  descendants,  whatever 
may  be  the  shade  of  their  complexion,  and  whether  bond  or  free, 
are  under  the  like  degrading  disability.  In  a  few  of  the  slave- 
holding  states,  the  rule  derives  its  authority  from  custom — in 
others,  the  legislatures  have  sanctioned  it  by  express  enactment. 
In  Virginia,  there  is  an  act  of  assembly  in  these  words:  "  Any 
negro  or  mulatto,  bond  or  free,  shall  be  a  good  witness  in  pleas 
of  the  commonwealth  for  or  against  negroes  or  mulattoes,  bond 
or  free,  or  in  civil  pleas  where  free  negroes  or  mulattoes  shall 
alone  be  parties,  and  in  no  other  cases  whatever."  1  R.  V.  C. 
422.  Similar  in  Missouri,  2  Missouri  Laws,  600.  In  Missis 
sippi,  Mississippi  Rev.  Code,  372.  In  Kentucky,  2  Lift.  #• 
Swi.  1150.  In  Alabama,  Toulmin's  Digest,  627.  In  Mary 
land,  Maryland  Laivs,  act  of  1717,  ch.  13,  §  2  fy  3,  and  act  of 
1751,  ch.  14,  §4.  In  North  Carolina  and  Tennessee,  act  of 
1777,  ch.  2,  §  42.  And  in  OHIO,  act  of  Assembly,  of  January 
25,  1807.* 

Such  being  the  law,  it  requires  no  extraordinary  perspicacity 
to  pronounce,  that  its  effects  must  be  most  injurious  to  the  un 
happy  victim  of  slavery.  It  places  the  slave,  who  is  seldom 
within  the  view  of  more  than  one  white  person  at  a  time,  en 
tirely  at  the  mercy  of  this  individual,  without  regard  to  his 
fitness  for  the  exercise  of  power — whether  his  temper  be  mild 
and  merciful,  or  fierce  and  vindictive.  A  white  man  may,  with 
impunity,  if  no  other  white  be  present,  torture,  maim,  and  even 
murder  his  slave,  in  the  midst  of  any  number  of  negroes  and 
mulattoes.  Having  absolute  dominion  over  his  slave,  the  mas 
ter  or  his  delegate,  if  disposed  to  commit  illegal  violence  upon 
him,  may  easily  remove  him  to  a  spot  safe  from  the  observation 
of  a  competent  witness.  Indeed,  it  is  probable,  few  white  per 
sons  ordinarily  reside  upon  the  same  plantation,  since  I  find,  in 
most  of  the  slave-holding  states,  the  owners  of  slaves  are  com 
pelled  by  a  considerable  penalty,  "  to  keep  at  least  one  white 


*  The  existence  of  such  a  law  in  Ohio,  will,  I  suspect,  create  surprise  even 
in  the  mind  of  an  inhabitant  of  a  slave-holding  state.  Stronger  proof  of  the 
effect  of  prejudice  could  scarcely  be  produced. 


67 

man  on  each  plantation  to  which  a  certain  number  of  slaves  is 
attached" — a  law  which  would  not  have  been  necessary  ^unless 
a  contrary  practice  was  prevalent.  See  Prince's  Digest,  455,  &?c. 
Plain  and  conclusive  as  this  reasoning  must  be  to  the  mind  of 
any  candid  person,  I  think  it  best,  nevertheless,  to  corroborate 
it  by  the  direct  testimony  of  several  distinguished  persons, 
whose  means  of  information  entitle  them  to  speak  with  authority. 
Sir  William  Young,  then  governor  of  Tobago,  and  an  advocate 
of  slavery,  thus  expressed  himself  in  1811:  "  Instances  of  bad 
treatment  and  cruelty,  and  of  unjust  and  immoderate  punish 
ments  of  slaves,  I  think  occur  exclusively  within  the  narrow 
trading  or  household  circle  of  unattached  slaves;  and,  I  am  sorry 
to  say,  have  frequently  been  reported  to  me,  with  circumstan 
ces  of  atrocity  to  be  believed,  though  (for  reasons  which  I  shall 
give)  not  to  be  proved  against  lower  white  or  coloured  people 
domineering  over  from  two  to  ten  or  more  wretched  beings, 
their  slaves.  In  such  cases,  what  protection  by  law  have  the 
slaves  against  the  abuse  of  power  over  them,  by  Europeans,  or 
other  free  people?  /  think  the  slaves  have  no  protection.  In 
this,  and  I  doubt  not  in  every  other  island,  there  arc,  laws  for 
the  protection  of  slaves,  and  good  ones;  but  circumstances  in 
the  administration  of  ivhatever  law  render  it  a  dead  letter. 
When  the  intervention  of  the  law,"  he  continues,  "  is  most 
required,  it  will  have  the  least  effect;  as,  in  cases  where  a  vin 
dictive  and  cruel  master  has  care  to  commit  the  most  atrocious 
cruelties,  even  to  murder  his  slave,  NO  FREE  PERSON  BEING 
PRESENT  TO  WITNESS  THE  ACT.  There  appears  to  me  a  radical 
defect  in  the  administration  of  justice  throughout  the  West  In 
dies,  in  whatever  case  the  wrongs  done  to  a  slave  are  under 
consideration;  or  rather,  that  justice  cannot  in  truth  be  ad 
ministered,  controlled  as  it  is  by  a  law  of  evidence  which  co 
vers  the  most  guilty  European  with  impunity,  provided  that 
when  having  a  criminal  intent,  he  is  cautious  not  to  commi 
the  crime  in  the  presence  of  a  free  witness.  I  should  consider 
it  as  inconsistent  with  the  respect  and  deference  I  bear  to  the  sa 
gacity  and  wisdom  of  the  august  body  for  whose  use  this  report 
is  framed,  to  idly  enlarge  it  with  the  enumeration  of  humane 
laws  for  the  protection  of  slaves,  all  rendered  nugatory  by  the 


68 

conditions  of  evidence  required  in  their  administration."  See 
for  this  extract  from  Sir  William  Young,  Report,  &c.  a  note,  to 
page,  167  of  Stephen's  West  Indian  Slavery,  fyc.  page  168-9. 
Mr.  Stephen  has  collected  the  statements  of  many  others  hold 
ing  official  stations  in  the  British  West  India  colonies,  all  con 
curring  in  relation  to  this  one  point — the  inefficacy  of  all  laws 
made  for  the  protection  of  slaves,  in  consequence  of  the  rejec 
tion  of  the  testimony  of  slaves.  I  avail  myself  of  an  additional 
citation  from  this  source.  The  Chief  Justice,*  &c.  of  the  island 
of  St.  Vincent,  gives  the  following  answer  to  parliamentary  in 
quiries  proposed  to  him  in  the  year  1791.  "  The  only  instances 
in  which  their  (slaves)  persons  appear  to  be  protected  by  the 
letter  of  the  law,  are  in  cases  of  murder,  dismemberment  and 
mutilation;  and  in  these  cases,  as  the  evidence  of  slaves  is  never 
admitted  against  a  white  man,  the  difficulty  of  establishing 
the  facts  is  so  great,  that  white  men  are  in  a  manner  put  be 
yond  the  reach  of  the  law." 

I  subjoin  a  further  proof,  not  that  I  consider  the  present  topic 
difficult  of  explanation,  but  because  what  I  now  adduce  is  bor 
rowed  from  the  authentic  records  of  a  slave-holding  state  of  our 
own  country.  The  negro  act  of  South  Carolina  contains  the 
following  preamble  to  one  of  its  sections:  "  Whereas,  by  reason 
of  the  extent  and  distance  of  plantations  in  this  province,  the 
inhabitants  are  far  removed  from  each  other,  and  many  cruel 
ties  may  be  committed  on  slaves,  because  no  white  person  may 
be  present  to  give  evidence  of  the  same,"  &c.  2  Brevard's  Di 
gest,  242. 

After  such  admissions  of  the  evils  of  this  law,  we  are  natu 
rally  induced  to  inquire  what  reasons  have  led  to  its  adoption, 
and  especially  what  can  justify  its  continuance. 

It  is  alleged  by  its  advocates,  that  it  is  coeval  with  the  insti 
tution  of  slavery;  and  they  add,  moreover,  as  if  this  circum 
stance  were  of  great  moment,  that  slavery  has  existed  since  the 
time  of  Noah.  2  Brevard's  Digest,  222,  note.  That  servitude 
under  some  form  is  of  a  very  remote  antiquity,  there  can  be  no 
doubt;  but  it  cannot  be  established,  it  is  believed,  by  proofs  at 

*  Drewry  Ottley,  Esq. 


69 

all  worthy  of  reliance,  that  the  rejection  of  the  testimony  of  the 
slave  has  always  been  a  concomitant  evil.  *  If  indeed  it  could 
be  shown  that  such  had,  in  all  ages,  been  the  misfortune  of  the 
oppressed,  it  would  not  surely,  on  that  account,  carry  conviction, 
of  the  justice  of  the  rejection,  to  the  mind  of  any  one,  who  rightly 
weighs  the  claims  of  humanity,  and  who  believes  that  "  to  do 
justly,  and  love  mercy,"  are  duties  of  inflexible  and  perpetual 
obligation. 

Villanage,  as  it  existed  in  England,  furnishes  no  authority  for 
the  universal  application  of  this  rule.  -  A  villain  was  a  good  wit 
ness,  in  civil  cases,  against  any  one  except  his  lord;  see  Bro. 
abridg.  tit.  villeinage,  66;  and,  as  he  might  prosecute  his  lord 
in  the  king's  name,  for  violence  done  to  his  person,  it  is  right 

*  Josephus,  in  book  4,  chap.  8,  §  15,  of  his  Antiquities  of  the  Jews,  (Wltis- 
ton's  translation,')  states  the  law  on  this  subject  differently  from  what  we  find 
it  recorded  in  the  Sacred  Scriptures  of  the  Old  Testament.  The  passage  in 
Josephus  stands  thus:  "  Let  not  a  single  witness  be  credited,  but  three  or  two 
at  least,  and  those  such  whose  testimony  is  confirmed  by  their  good  lives. 
.But  let  not  the  testimony  of  women  be  admitted  on  account  of  the  levity  and  bold 
ness  of  their  sex,  nor  let  servants  be  admitted  on  account  of  the  ignobility  of  their 
soul,  since  it  is  probable  that  they  may  not  speak  the  truth,  either  out  of  hope  of  a-ain 
or  fear  of  punishment."  The  authority  of  Josephus  cannot  be  set  in  compe 
tition  with  that  of  the  Sacred  Scriptures,  as  they  have  descended  to  us.  And 
though  he  professes  to  give  the  law  as  established  by  Moses,  and  left  by  him 
in  writing,  without  any  ornament  or  addition,  yet  it  requires  but  little  attention 
to  discover,  that  instead  of  the  Pentateuch  itself,  he  has  furnished  a  commen 
tary  upon  it  by  the  Scribes  and  Pharisees,  whose  "  traditions,"  as  we  are  told 
by  unerring  wisdom,  had  made  "  void  the  law."  See  note,  to  Whiston's  trans 
lation,  on  the  text  of  Josephus  above  cited;  also,  3d  volume  of  Home's  Introduction 
to  a  Critical  Study  of  the  Holy  Scriptures,  112,  (American  edition.)  When, 
therefore,  we  find  the  law  of  Moses,  according  to  our  Canon,  prescribes  nu 
merous  rules  for  the  treatment  o|  servants  or  slaves,  regulates  with  consider 
able  minuteness  judicial  proceedings  in  general,  and  makes  particular  mention 
of  the  number  of  witnesses  required  to  establish  the  truth,  and  yet  is  entirely 
silent  as  to  the  competency  of  women  and  servants  as  witnesses,  it  is  fair  to  pre 
sume  that  no  such  disqualifications  were  ever  sanctioned  by  the  Jewish  law 
giver.  See  Deut.  ch.  17,  v.  6 — and  ch.  19,  v.  15,  et  seq.  The  judges,  indeed,  were 
expressly  empowered  to  decide  upon  the  credibility  of  witnesses — to  proceed 
against  those  who  testified  falsely,  in  a  summary  manner,  and  to  inflict  retalia 
tory  punishment  upon  them.  From  which,  I  infer,  that  both  the  accuser  and 
accused  had  a  right  to  produce  their  witnesses,  and  compel  the  hearing  of  them, 
leaving  the  judges,  like  our  juries,  to  decide  upon  the  weight  of  their  testi 
mony. 


70 

to  presume,  in  such  a  case,  he  must  have  been  admitted  as  a  wit 
ness  against  him  also;  Coke  Litt.  124,  a.;  Dulany's  Opinion, 
1  Maryland's  Reports,  561;  and,  without  doubt,  in  criminal 
cases  generally,  it  was  no  exception  to  a  witness  that  he  was  a 
villain  or  bondman."  Hawkin's  Pleas  of  the  Crown,  book  2, 
chap.  46,  §28;  Coke  Litt.  124,  a. 

We  must  have  recourse  to  the  civil  law  for  its  probable  origin. 
"  The  general  rule  of  that  law  certainly  was,  that  a  slave  could 
not  be  a  witness,  though  there  were  exceptions  to  it,  founded  in 
reason  and  policy,  for  men  of  that  condition  might  be  examined 
when  the  welfare  of  the  state,  in  cases  of  weight  and  difficulty, 
required  such  a  departure  from  general  principles,  or  when  other 
evidence  was  unattainable."  Stephen's  West  India  Slavery, 
171,  citing  Voetius's  Commentary  on  the  Pandects.  This 
latter  exception,  it  is  obvious,  destroys  the  rule,  if  we  are  to 
understand  by  it  that  a  slave  might  be  examined,  in  the  defect 
of  other  proof,  for  the  inculpation  of  any  offender  against  the 
laws.  And  such  I  suppose  to  be  the  true  meaning,  since 
"  slaves  might  always  (among  the  Romans)  induce  an  investi 
gation,  by  flying  to  the  statues  of  the  princes;"  Cooper's  Jus 
tinian,  412;  a  privilege  which  would  be  of  but  little  value,  un 
less  the  slave  could  be  examined  as  a  witness  against  his  injurer; 
and  if  thus  admissible  in  his  own  case,  with  much  more  pro 
priety  could  he  be  heard  on  behalf  of  third  persons,  where  feel 
ings  of  interest  would  not  operate  to  bias  him. 

It  may  be  safely  averred,  I  believe,  that  this  rule  of  evidence, 
to  the  extent  in  which  it  obtains  in  our  slave-holding  states, 
cannot  challenge  for  its  support  the  authority  of  any  country, 
either  ancient  or  modern.  For  k  must  not  be  forgotten,  that 
it  is  not  the  evidence  of  slaves  only,  which  is  rejected  by  it — 
it  applies  equally  to  coloured  persons,  or  rather  to  the  descend 
ants  of  Africans,  as  well  to  those  who  are  free,  as  to  those  who 
are  slaves.  This  being  the  case,  I  shall  briefly  discuss  the  pro 
priety  of  it,  in  its  whole  compass.  *  And  first,  let  us  sec  upon 

*  In  Virginia>  a  very  early  statute  places  the  exclusion  on  the  ground  that 
none  but  Christians  should  be  witnesses,-  and  even  among  those,  a  certain  de 
scription  of  persons  were  excluded.  The  statute  I  allude  to,  runs  thus  : 


71 

what  reason  it  is  founded,  in  its  application  to  slaves.  It  has 
been  said,  the  admission  of  such  testimony  is  dangerous  to  the 
lives  and  fortunes  of  the  whites.  This  charge,  if  adopted  in  its 
most  obvious  sense,  would  seem  to  imply  the  total  destitution 
of  veracity  in  the  slave.  But  this  conclusion  must  be  too  com 
prehensive,  since  even  slaves  are  competent  witnesses,  not  only 
against  each  other,  but  against  free  persons  of  colour,  without 
any  restriction.  Law  of  Virginia,  1  Rev.  Code,  already  cited; 
Prince's  Digest,  446;  Hay  wood's  Manual,  523;  Maryland 
Laws,  act  of  1751,  chap.  14,  §  4,  8?c.  fyc. 

If  the  objection  is  restrained  to  the  testimony  of  the  slave 
against  his  master,  it  presumes  the  predominance  of  the  utmost 
depravity  of  heart  in  the  slave — a  depravity,  which,  in  the  grati 
fication  of  a  spirit  of  revenge,*  would  disregard  the  strongest 
moral  sanctions.  To  concede  this,  is  to  impute  a  highly  crimi 
nal  negligence  to  the  master — for  having  the  absolute  dominion 
of  the  slave,  the  dictates  of  humanity,  as  well  as  the  plain  pre 
cepts  of  the  gospel,  demand  the  bestowal  of  such  attention  to  the 
religious  instruction  of  the  slave,  as,  in  ordinary  cases,  would 
prevent  or  extirpate  such  excessive  malignity. 

But,  it  is  said,   "  the  hope  of  gain,"  or  "  the  fear  of  punish- 

"  Popish  recusants  convict,  negroes,  mulattoes  and  Indian  servants  and  others 
not  being  Christians,  shall  be  deemed  and  taken  to  be  persons  incapable  in 
law,  to  be  witnesses  in  any  case  whatsoever."  See  3  Henning's  Statutes  (of  Vir 
ginia)  at  large,  298,  act  of  October,  1705,  (4*A  Anne}  sect,  31.  In  Maryland, 
papacy,  of  course,  is  not  subjected  to  the  ban,  but  the  like  intolerance  is  never 
theless  evinced:  "  No  negro  or  mulatto  slave,  free  negro  or  mulatto  born  of  a 
white  woman,  during  his  time  of  servitude  by  law,  or  any  Indian  slave  or  free 
Indian  natives  of  this  or  the  neighbouring  provinces,  (shall)  be  admitted  and 
received  as  good  and  valid  evidence  in  law,  in  any  matter  or  thing  whatsoever 
depending  before  any  court  of  record,  or  before  any  magistrate  within  this 
province,  wherein  any  Christian  white  person  is  concerned. ".  Acts  of  1717,  chap. 
13,  §2. 

*  And  yet  revenge  does  not  seem  to  be  more  prevalent  with  blacks  than 
with  whites.  CLARKSON-,  whose  labours  on  behalf  of  the  negro  are  so  well 
known,  makes  the  following  memorable  declaration:  "  That  he  had  not,  after 
a  diligent  and  candid  investigation  of  the  conduct  of  emancipated  slaves,  under 
a  great  variety  of  circumstances,  comprising  a  body  of  more  than  five  hundred 
thousand,  a  considerable  proportion  of  whom  had  been  suddenly  enfranchised, 
found  a  single,  instance  of  revenge  or  abuse  of  liberty." 


72 

ment,"  would  probably  induce  the  slave  to  testify  falsely, 
"  The  hope  of  gain"  will  be  felt  chiefly,  if  not  exclusively,  in 
investigations  touching  the  master's  interest;  an  objection, 
•which,  if  it  be  a  valid  one,  degrades  the  master  far  below  the 
level  of  the  suborned  slave.  "  The  fear  of  punishment"  is  a 
more  embarrassing  difficulty — so  much  so,  indeed,  that  it  would 
perhaps  be  proper,  as  a  general  rule,  to  exclude  such  testimony 
when  offered  on  behalf  of  the  master. 

To  every  other  objection,  except  the  last,  under  the  peculiar 
restriction  there  mentioned,  TRIAL  BY  JURY  is  an  ample  refu 
tation.  It  is  scarcely  conceivable,  that  a  being  so  degraded  as 
is  a  slave  in  the  eyes  of  those  who  usually  compose  juries  in  the 
slave-holding  states,  should,  as  a  witness,  operate  serious  injus 
tice  to  a  white  man.  Labouring  under  the  prejudice  with  which 
he  is  likely  to  be  viewed  by  slave  owners,  it  is  fair  to  infer, 
that  unless  fortified  by  other  unexceptionable  witnesses,  or  by 
strong  circumstances,  a  slave's  testimony  would  ordinarily  go 
for  nothing.  But,  as  has  been  well  remarked  by  Mr.  Stephen, 
"  how  many  instances  are  there  in  which  the  evidence  of  a  wit 
ness,  who  is  liable  in  a  much  higher  degree  to  distrust,  is  essen 
tial  to  the  interests  of  justice,  and  may  furnish  a  satisfactory 
ground  of  decision,  even  for  the  purposes  of  conviction  in  capi 
tal  cases.  Often  is  a  necessary  link  in  the  chain  of  circumstan 
tial  evidence  wanting,  which  the  vilest  man  on  earth  might  cre 
dibly  supply,  because  the  other  circumstances  have  previously 
raised  the  highest  presumption  of  its  truth,  and  of  its  being  a 
truth  too  within  the  knowledge  of  that  witness.  Sometimes 
also  testimony,  which  is  very  low  in  credit,  may  justly  derive 
great  weight  from  the  consideration,  that  if  untrue,  the  opposite 
party  possessed  the  means  of  refuting  it  by  satisfactory  proof, 
which  he  has  not  produced ;  and  sometimes  it  is  satisfactory, 
because  it  is  strongly  corroborated  by  other  evidence,  though 
neither  would  have  separately  sufficed. "  The  examination  of 
accomplices  in  crime  against  each  other,  instances  of  which  are 
of  daily  occurrence  in  criminal  courts,  is  an  illustration  of  these 
principles. 

In  the  ruder  ages  of  society,  courts  of  law,  viewed  the  com 
petency  of  witnesses  with  great  jealousy.  Persons  were  pre- 


73 

vented  from  giving  testimony  then,  on  objections  which  are 
now  treated  as  of  insufficient  validity.  For  this  improvement 
in  judicial  administration  we  are  principally  indebted  to  the  as 
certained  practical  excellence  of  trial  by  jury.  Besides,  hus 
band  and  wife,  who,  in  general)  from  motives  of  public  policy 
and  humanity  are  forbidden  or  excused  from  testifying  for  or 
against  each  other,  may,  under  some  circumstances,  from  neces 
sity,  in  legal  contemplation,  i.  e.  to  prevent  an  entire  failure 
of  justice,  be  heard  even  in  their  own  behalf.  Such  is  the 
case  where  personal  violence  has  been  offered  by  the  one  to  the 
other.  The  grant  of  a  like  privilege  to  the  slave  against  his 
master,  in  particular,  may  be  supported  by  reasons,  at  least, 
equally  forcible.  And  such  a  right  it  seems  probable  obtained 
in  Massachusetts,  as  far  as  we  are  informed,  without  inconve 
nience — on  the  contrary,  I  have  no  doubt,  with  decisive  public 
advantage. — See  supra,  note  to  page  23. 

If  trial  by  jury  is  a  sufficient  answer  to  the  several  objections 
against  the  admission  of  a  slave's  testimony,  with  much  greater 
force  may  it  be  urged  in  reference  to  the  competency  of  the 
free  negro.  Indeed,  it  is  to  me  inconceivable,  upon  what  plau 
sible  ground  the  unqualified  and  universal  rejection  of  the  lat 
ter  as  a  witness,  can  be  supported.  It  is  without  the  precedent 
of  any  other  country,  it  is  believed,  whether  civilized  or  savage. 
The  freedman  was  a  competent  witness  by  the  civil  law.  He 
might  even  give  evidence  of  what  came  to  his  knowledge  be 
fore  his  enfranchisement;  a  privilege  not  allowed  by  the  same 
law  to  the  man  of  full  age,  in  respect  to  what  he  learnt  during 
his  nonage.  Stephen,  181-2,  citing  Voetius  ad  pand.  Lib. 
xxii.  Tit.  5.  §  2.  In  the  West  Indies,  free  negroes  are  received 
as  witnesses  in  civil  actions  against  white  persons.  Stephen,  182  ; 
a  distinction  of  immense  advantage,  especially  in  a  trial  for 
freedom,  where  it  can  hardly  be  expected  a  white  person  would 
be  able  to  testify  as  to  the  pedigree  of  a  black. 

While  this  unqualified  and  universal  exclusion  of  the  evi 
dence  of  coloured  persons  prevails,  it  can  be  of  but  little  use  to 
enact  severe  penalties  against  kidnapping.  Secrecy  in  this  crime, 
in  particular,  will,  as  far  as  it  is  in  the  power  of  the  perpetrator,  be 

10 


74 

preserved;  and  if  the  free  negro, — the  injured  party, — cannot  be 
heard  against  the  offender,  from  what  other  source  can  satisfactory 
evidence  be  expected?  But  change  the  law,  admit  him  as  a  wit 
ness,  and  kidnapping  of  all  crimes  would  be  THE  EASIEST  OF 

DETECTION.* 

Confessedly  great  as  are  the  evils  of  this  harsh  regulation,  it 
will  naturally  be  asked,  if  a  remedy  of  some  description  has 
not  been  attempted.  To  this  it  may  be  answered,  that  a  pre 
posterous  and  wholly  inefficacious  one,  as  may  be  easily  demon 
strated,  has  been  devised  in  South  Carolina  and  imitated  in 
Louisiana.  Having  thus  characterized  it,  it  is  fit,  I  should  ex 
hibit  it  to  the  reader  that  he  may  judge  for  himself;  and  for 
this  purpose,  I  give  the  section  of  the  act  of  assembly,  in  which 
it  is  found,  without  abridgment:  "Whereas,  by  reason  of  the 
extent  and  distance  of  plantations  in  this  province,  the  inhabi 
tants  are  far  removed  from  each  other,  and  many  cruelties 
may  be  committed  on  slaves  because  no  white  person  may  be 
present  to  give  evidence  of  the  same,  unless  some  method 
be  provided  for  the  better  discovery  of  such  offence,  and  as 
slaves^are  under  the  government,  so  they  ought  to  be  under  the 
protection  of  masters  and  managers  of  plantations,  Be  it  en 
acted,  That  if  any  slave  shall  suffer  in  life,  limb  or  member, 
or  shall  be  maimed,  beaten  or  abused  contrary  to  the  direc 
tions  and  true  intent  and  meaning  of  this  act  when  no  white 
person  shall  be  present,  or  being  present  shall  neglect  or  refuse 
to  give  evidence,  or  be  examined  upon  oath  concerning  the  same; 
in  every  such  case  the  owner  or  other  person  who  shall  have 

*  Too  much  force  cannot  be  given  to  this  argument.  Remote  as  is  the  city 
of  Philadelphia  from  those  slave-holding-  states  in  which  the  introduction  of 
slaves  from  places  within  the  territory  of  the  United  States  is  freely  permitted 
and  where  also  the  market  is  tempting,  it  has  been  ascertained  that  more  than 
thirty  free  coloured  persons,  mostly  children,  have  been  kidnapped  here  and 
carried  away,  within  the  last  two  years.  Five  of  these,  through  the  kind  inter 
position  of  several  humane  gentlemen,  have  been  restored  to  their  friends, 
though  not  without  great  expense  and  difficulty ;  the  others  are  still  retained 
in  bondage,  and  if  rescued  at  all,  it  must  be,  by  sending  white  witnesses  a  jour 
ney  of  more  than  a  thousand  miles.  The  costs  attendant  upon  law-suits  under 
such  circumstances,  will  probably  fall  but  little  short  of  the  estimated  value, 
as  slaves,  of  the  individuals  kidnapped. 


75 

the  care  and  government  of  such  slave,  and  in  whose  possession 
or  power  such  slave  shall  be,  shall  be  deemed,  taken,  reputed 
and  adjudged  to  be  guilty  of  such  offence,  and  shall  be  pro 
ceeded  against  accordingly  without  further  proof,  unless  such 
owner  or  other  person  as  aforesaid  can  make  the  contrary  ap 
pear  by  good  and  sufficient  evidence,  or  shall  by  HIS  OWN  OATH 
clear  and  exculpate  himself;  which  oath  every  court  where 
such  offence  shall  be  tried,  is  hereby  empowered  to  administer, 
and  to  acquit  the  offender  if  clear  proof  of  the  offence  be  not 
made  by  two  witnesses  at  least."  2  Brevard's  Digest,  242. 

The  reader  has  probably  anticipated  my  objections  to  the  ex 
traordinary  provisions  of  this  law.  That  the  slave  population, 
were  subjected  to  many  cruelties,  as  is  set  forth  in  the  pream 
ble,  in  consequence  of  the  exclusion  of  their  testimony  against 
their  oppressors,  I  have  no  doubt,  and  that  the  legislatures  were 
fully  convinced  of  this  I  consider  to  be  equally  clear.  But  it 
is  by  no  means  clear,  that  a  remedy  of  the  mischief  was«Vi- 
tended  by  the  enactment  of  this  section.  It  would  detract  from 
the  intellectual  character  of  the  legislature  to  suppose  so. 
Could  it  be  reasonably  expected,  that  the  presumption  of  guilt, 
which  the  act  authorizes  to  be  made,  would  lead  to  a  conviction, 
when  the  party  could  purge  himself  of  the  accusation  brought 
against  him  by  his  own  oath  ?  Of  a  crime  which  could  be  satis- 
tied  by  a  small  pecuniary  fine,  perhaps  it  sometimes  might ; — 
such  instances,  however,  one  white  person  only  in  general 
being  on  the  plantation,  would  seldom  be  brought  to  the  know 
ledge  of  the  magistrate.  But  would  the  man,  wicked  enough  to 
commit  murder,  hesitate  to  screen  himself  from  its  penalties,  by 
a  crime  not  more  heinous  certainly,  than  that  which  he  would 
thus  conceal?*  But  this  is  a  view  of  the  law  far  more  favourable 
than  its  true  construction  authorizes.  For  it  is  in  terms,  declared, 

*  No  one,  I  believe,  will  question  the  truth  of  this  as  a  general  remark.  It 
is  not,  therefore,  for  the  purpose  of  fortifying1  it,  that  I  refer  to  a  case,  report 
ed  in  the  South  Carolina  reports  of  judicial  decisions,  in  which  the  excul 
patory  oath  was  offered  to  be  made,  by  a  person,  whom  the  court  decided  not 
to  be  within  the  benefit  of  the  act,  and  who  was,  immediately  afterwards,  upon 
good  evidence,  found  guilty  of  manslaughter.  See  Tfo  Stale  v$,  Welch,  1  Bays* 
Itcports,  172. 


76 

that  the  offender  shall  be  acquitted,  upon  his  own  oath  of  inno 
cence,  if  clear  proof  of  his  guilt  be  not  'made  by  TWO  wit 
nesses  at  least;  thus,  in  fact,  introducing  a  modification  of  the 
former  law,  not  for  the  protection  of  the  slave,  BUT  FOR  THE 

ESPECIAL  BENEFIT  OF  ACRUEL  MASTER  OR  OVERSEER  !  !  ! 

• 
II.    A  SLAVE  CANNOT  BE  A  PARTY  TO  A  CIVIL  SUIT. 

It  has  been  shown  in  a  preceding  part  of  the  sketch,  that  a 
slave  can  neither  acquire  nor  retain  property,  as  his  own,  con 
trary  to  the  will  of  his  master.  It  results,  therefore,  that  he 
cannot  be  a  party  to  a  civil  suit,  for  there  is  no  species  of  civil 
suit  which  does  not,  in  some  way,  affect  property. 

There  is,  however,  an  authority,  which  for  the  purpose  of 
convenient  investigation  may  be  classed  as  an  exception  to  the 
above  rule,  given  by  the  laws  of  all  the  slave-holding  states,  to 
persons  held  as  slaves,  BUT  CLAIMING  TO  BE  FREE,  to  prosecute 
their  claims  to  freedom  before  some  judicial  tribunal.  I  de 
sign,  therefore,  in  this  place  to  bring  into  view  whatever  relates 
to  this  subject. 

The  oldest  law  of  this  description,  appears  to  have  been 
adopted  by  South  Carolina  in  the  year  1740.  It  begins  with 
what  has  been  already  extracted,  but  which  for  the  sake  of  per 
spicuity,  it  will  be  proper  to  repeat,  "Be  it  enacted,  That  all 
negroes,  Indians,  (free  Indians  in  amity  with  this  government, 
and  negroes,  mulattoes  and  mestizoes  now  free,  excepted,)  mu- 
lattoes  and  mestizoes  who  now  are  or  shall  hereafter  be  in  this 
province,  and  all  their  issue  and  offspring  born  or  to  be  born, 
shall  be  and  they  are  hereby  declared  to  be  and  remain  for  ever 
hereafter  absolute  slaves,  and  shall  follow  the  condition  of  the 
mother,  &c.  &c.  Provided,  that  if  any  negro,  Indian,  mulatto, 
or  mestizo,  claim  his  or  her  freedom,  it  shall  and  may  be  law 
ful  for  such  negro,  Indian,  mulatto  or  mestizo,  or  any  person  or 
persons  whatsoever,  on  his  or  her  behalf  to  apply  to  the  judges 
of  his  majesty's  court  of  common  pleas,  by  petition  or  motion, 
either  during  the  sitting  of  the  said  court,  or  before  any  of  the 
justices  of  the  same  court,  at  any  time  in  vacation.  And  the  said 
court,  or  any  of  the  justices  thereof,  shall,  and  they  arc  hereby 
fully  empowered  to  admit  any  person  so  applying  to  be  guardian 


77 

for  any  negro,  Indian,  mulatto  or  mestizo  claiming  his  or  her 
or  their  freedom,  and  such  guardian  shall  be  enabled,  entitled  and 
capable  in  law  to  bring  an  action  of  trespass,  in  the  nature  of 
ravishment  of  ward,  against  any  person  who  shall  claim  pro 
perty  in,  or  who  shall  be  in  possession  of  any  such  negro,  In 
dian,  mulatto  or  mestizo,  and  the  defendant  shall  and  may  plead 
the  general  issue  in  such  action  brought,  and  the  special  matter 
may  and  shall  be  given  in  evidence,  and  upon  a  general  or  spe 
cial  verdict  found,  judgment  shall  be  given,  according  to  the 
very  right  of  the  cause,  without  having  any  regard  to  any  defect 
in  the  proceedings,  either  in  form  or  substance.  And  if  judg 
ment  shall  be  given  for  the  plaintiff,  a  special  entry  shall  be 
made,  declaring,  that  the  ward  of  the  plaintiff  is  free,  and  the 
jury  shall  assess  damages  which  the  plaintiff's  ward  hath  sustain 
ed,  and  the  court  shall  give  judgment  and  award  execution 
against  the  defendant  for  such  damages,  with  full  costs  of  suit; 
but  in  case  judgment  shall  be  given  for  the  defendant,  the 
said  court  is  hereby  fully  empowered  to  inflict  SUCH  CORPORAL 

PUNISHMENT,  NOT  EXTENDING   TO  LIFE  OR  LIMB,  On  the  Ward  of 

the  plaintiff,  as  they  in  their  discretion  shall  think  fit.  Pro 
vided,  that  in  any  action  or  suit  to  be  brought  in  pursuance  of 
the  direction  of  this  act,  THE  BURTHEN  OP  THE  PROOF  shall  lay 
upon  the  plaintiff,  and  it  shall  be  always  presumed  that 
every  negro,  Indian,  mulatto  and  mestizo,  is  a  slave,  unless 
the  contrary  be  made  to  appear,  (the  Indians  in  amity  with  this 
government  excepted,  in  which  case,  the  burthen  of  the  proof 
shall  be  on  the  defendant.)"  2  Brevard's  Digest,  229-30. 

In  George,  the  act  of  assembly  of  May  10,  1770,  is  almost 
literally  a  copy  of  this  of  South  Carolina.  See  Prince's  Digest, 
446. 

It  is  impossible  for  any  humane  and  reflecting  person  to  ex 
amine  the  provisions  of  the  above  law,  without  the  conviction 
of  its  injustice  ana  cruelty.  The  negro,  &c.  claims  to  be  free, 
and  yet  he  can  bring  no  suit  to  investigate  his  master's  title  to 
restrain  him  of  his  liberty,  unless  some  one  can  be  found  mer 
ciful  enough  to  become  his  guardian,  subject  in  any  event,  to 
the  expense  and  trouble  of  conducting  his  cause,  and  in  case  of  a 


78 

failure,  to  the  costs  of_  suit.  *  His  judges  and  jurors  will  in  all 
probability  be  slave-holders,  and  interested,  therefore,  in  some 
measure,  in  the  question  which  they  are  to  try.  The  whole 
community  in  which  he  lives  may,  so  few  are  the  exceptions, 
be  said  to  be  hostile  to  his  success.  Being  a  negro,  &c.  by  the 
words  of  the  act,  the  burthen  of  proof  rests  upon  him,  and 
he  is  presumed  to  be  a  slave  till  he  make  the  contrary  ap 
pear.  This  is  to  be  effected  through  the  instrumentality  of 
white  witnesses,  as  has  been  just  shown,  exclusive  of  the  testi 
mony  of  those  who  are  not  white,  even  though  they  may  be  free 
and  of  the  fairest  character.  And,  lastly,  notwithstanding  all 
these  obstacles  to  the  ascertaining  of  the  truth  of  his  allegations, 
the  terror  is  superadded,  should  he  not  succeed  in  convincing 

*  In  South  Carolina,  by  an  act  passed  in  1802,  "  the  guardian"  (in  a  trial 
for  freedom)  "of  a  slave,"  (who  may  have  been  illegally  imported  into  the 
state,  and  is,  on  that  account,  by  the  same  law,  declared  to  be  free,)  "  claiming 
his  freedom,  shall  be  liable  to  double  costs  of  suit,  if  his  action  shall  be  adjudg 
ed  groundless;  and  shall  be  liable  to  pay  to  the  bona  fide  owner  of  such  slave, 
all  such  damages  as  shall  be  assessed  by  a  jury  and  adjudged  by  any  court  of 
common  pleas."  2  Brevard's  Digest,  260.  And  in  Maryland,  the  attorney,  in  a 
trial  for  freedom,  must  pay  all  costs,  if  unsuccessful,  unless  the  court  shall  be 
of  opinion  that  there  was  probable  cause  for  supposing  that  the  petitioner  had 
a  right  to  freedom.  Jlct  of  Nov.  1796,  chap.  67,  §  25.  And,  on  such  a  trial,  the 
master  (the  defendant)  is  allowed  twelve  PEREMPTORY  challenges  as  to  the  ju 
rors.  Ibid.  §  24.  The  same  spirit  of  hostility  to  the  claimant  for  freedom  is 
manifested  in  Virginia,  where,  "  for  aiding  and  abetting  a  slave  in  a  trial  for 
freedom,  if  the  claimant  shall  fail  in  his  suit,  a  fine  of  one  hundred  dollars  is 
imposed.  1  Rev.  Code,  482.  Missouri  has  concocted  a  strange  mixture  of  lenity 
and  rigour,  in  a  law  on  this  subject.  A  person  claiming  his  freedom,  may  pe 
tition  the  court,  &,c.  praying  that  he  may  be  permitted  to  sue  as  a  poor  person, 
and  stating  the  ground  upon  which  his  or  her  claim  to  freedom  is  founded:  and 
"  if  in  the  opinion  of  the  court,  &c.  the  petition  contains  sufficient  matter  to  autho 
rize  the  commencement  of  a  suit,  the  court,  &c.  may  make An  order  that  such 
person  be  permitted  to  sue  as  a  poor  person,  and  may  assignee  petitioner  coun 
sel,  &c.  1  Missouri  Laws,  404.  The  privileges  of  suin^  as  a  poor  person,  and 
of  having  counsel  assigned  by  the  court,  are  worthy  o/  great  commendation, 
and  present  an  enviable  contrast  to  the  ferocious  spirit  of  the  South  Carolina 
and  Georgia  acts;  yet  it  is  made  to  depend  upon  the  (Arbitrament  of  the  court,  or 
even  of  a  single  judge,  whether  the  petitioner  shall  k  heard  by  a  jury  at  all.  In 
Alabama,  the  legislature  have  adopted  the  objeciionabk  parts  of  the  Missouri 
law,  while  the  benejidal  provisions  have  been  OMITTED!  !  Toulmin'x  Digest, 
632. 


79 

the  judge  and  jury  of  his  right  to  freedom,  of  an  infliction  of 
corporal  punishment  to  any  extent  short  of  capital  execution., 
or  the  deprivation  of  a  limb!!!  And  in  Georgia,  (( should 
death  happen  by  accident  in  giving  this  legal  (moderate)  correc 
tion,"  according  to  the  terms  of  the  constitution  already  quoted,* 
it  will  be  no  crime !  Such  legislation  forcibly  reminds  us  of  the 
feast  of  Damocles — though,  in  all  soberness,  it  may  be  said,  the 
conduct  of  Dionysius  was  supreme  beneficence,  compared  with 
the  terms  of  mercy  contained  in  this  act. 

The  harsh  and  unreasonable  doctrine  which  presumes  every 
negro,  &c.  to  be  a  slave,  obtains,  I  believe,  with  the  single 
exception  which  will  be  hereafter  noticed,  in  all  the  slave-hold 
ing  states.  In_Virginia,  there  is  no  statute  to  this  effect,  yet  so  is 
the  law  as  established  by  judicial  decisions.  Thus,  where  in  suits 
for  freedom,  brought  by  several  persons,  whose  descent  was  traced 
to  a  free  Indian  woman,  and  where,  as  the  reporters  say,  "  On 
the  hearing,  the  late  chancellor,!  perceiving  from  his  own  view, 
that  the  youngest  of  the  appellees  was  perfectly  white,  and  that 
there  were  gradual  shades  of  difference  in  colour  between  the 
grand-mother,  mother  and  grand-daughter,  (all  of  whom  were 
before  the  court,)  and  considering  the  evidence  in  the  cause, 
determined  that  the  appellees  were  entitled  to  their  freedom, 
and  moreover,  on  the  ground  that  freedom  is  the  birthright  of 
every  human  being,  which  sentiment  is  strongly  inculcated  by 
the  first  article  of  our  political  catechism,  the  bill  of  rights — he 
laid  it  down  as  a  general  position,  that  whenever  one  person 
claims  to  hold  another  in  slavery,  the  onus  probandi  (burthen 
of  proof ')  lies  on  the  claimant."  The  supreme  court  of  ap 
peals,  to  which  the  case  was  afterwards  carried,  thought  fit,  in 
reviewing  the  decision  of  the  chancellor,  to  go  beyond  the  ac 
customed  line  of  its  duty,  in  order  to  cast  a  stigma  upon  the  just 
position  which  had  been  asserted  by  him.  The  following  is  a 
copy  of  the  final  judgment:  "  This  court,  not  approving  of  the 
chancellor's  principles  and  reasoning  in  his  decree  made  in 
this  cause,  except  so  far  as  the  same  relates  to  white  persons 

*  See,  supra,  page  37. 

f  The  Honourable  George  Wythe,  one  of  the  signers  of  the  Declaration  of 
our  Independence. 


80 

and  native  American  Indians,  BUT  ENTIRELY  DISAPPROVING 
thereof,  so  far  as  the  same  relates  to  native  Africans  and 
their  descendants,  who  have  been  and  now  are  held  as  slaves 
by  the  citizens  of  this  state;  and  discovering  no  other  error  in 
the  said  decree,  affirms  the  same."  See  the  case,  Hudgins 
vs.  Wright,  1  Henning  $?  Munford's  Reports,  133  to  143. 
In  Maryland,  a  similar  decision  has  been  made,  3  Harris  8? 
M'  Henry's  Reports,  501-2,  case  of  negro  Mary  vs.  the  Vestry 
of  William  and  Mary's  Parish,  8?c.;  so,  in  Kentucky,  2  Bibb's 
Reports,  238,  Davis  vs.  Curry;  and,  in  New  Jersey,  2  Hal- 
sted's  Reports,  253,  Gibbons  vs.  Morse,  (decided  November, 
1821.) 

In  North  Carolina,  this  doctrine  is  received  with  some  limi 
tation,  the  presumption  being  confined  to  negroes  of  the  whole 
blood;  while  those  of  mixed  blood,  mulattoes,  mestizoes,  Sec. 
are  presumed  free,  until  the  contrary  is  proved.  The  report  of 
the  case,  in  which  this  principle  is  recognised,  is  given  in  1  Tay 
lor's  Reports,  1  64,  Gobu  vs.  Gobu.  The  case  itself  is  unique, 
and  on  this  account,  as  well  as  to  display  the  sound  reasoning 
(as  far  as  respects  the  mixed  blood)  of  Chief  Justice  Taylor, 
is  transcribed  at  large. 

(6  Gobu  }  m  i  f  i 

I  Trespass  and  false  imprisonment. 


Gobu  3  P^ea>  tnat  tne  plaintiff  is  a  slave,  &c. 

"  It  appeared  in  evidence,  that  the  plaintiff,  when  an  infant 
apparently  about  eight  days  old,  was  placed  in  a  barn,  by  some 
person  unknown,  and  that  the  defendant,  then  a  girl  of  about 
twelve  years  of  age,  found  him  there  and  conveyed  him  home, 
and  had  kept  possession  of  him  ever  since,  treating  him  with 
humanity,  but  claiming  him  as  her  slave.  The  plaintiff  was 
of  an  olive  colour,  between  black  and  yellow,  had  long  hair 
and  prominent  nose."  These  facts  were  ascertained  by  the 
court,  by  proof  and  inspection;  upon  which  the  judge  gave  the 
following  charge:  "I  acquiesce  in  the  rule  laid  down  by  the 
defendant's  counsel,  with  respect  to  the  presumption  of  every 
black  person  being  a  slave.  It  is  so,  because  the  negroes  origi 
nally  brought  into  this  country  were  slaves,  and  their  descen 
dants  must  continue  slaves  until  manumitted  by  proper  authority. 


81 

If,  therefore,  a  person  of  that  description  claims  his  freedom, 
he  must  establish  his  right  to  it  by  such  evidence  as  will  destroy 
the  force  of  the  presumption  arising  from  colour.  But  I  am  not 
aware,  that  the  doctrine  of  presumption  against  liberty  has  been 
urged,  in  relation  to  persons  of  mixed  blood,  or  to  those  of  any 
colour  between  the  two  extremes  of  black  and  white,  and  I  do 
not  think  it  reasonable  that  such  a  doctrine  should  receive 
the  least  countenance:  such  persons  may  have  descended  from 
Indians  in  both  lines,  or  at  least  in  the  maternal;  they  may  have 
descended  from  a  white  person  in  the  maternal  line,  or  from 
mulatto  parents  originally  free;  in  all  which  cases,  the  offspring 
following  the  condition  of  the  mother,  is  entitled  to  freedom. 
Considering  how  many  probabilities  there  are  in  favour  of  the 
liberty  of  these  persons,  they  ought  not  to  be  deprived  of  it 
upon  mere  presumption;  more  especially,  as  the  right  to  hold 
them  in  slavery,  if  it  exists,  is  in  most  instances  capable  of  being 
satisfactorily  proved.'7* 

While  I  freely  subscribe  to  the  soundness  of  the  views  of  this 
distinguished  jurist,  in  relation  to  persons  of  mixed  blood,  I 
cannot  but  dissent  from  the  specious  reasoning,  by  which  it  is 
inferred,  that  every  black  person  should  be  presumed  to  be  a 
slave.  Slavery  is  an  institution  which  all  profess  to  disapprove. 
It  violates  every  man's  sense  of  right:  it  is  at  variance  with  the 
genius  of  our  government.  Its  existence,  therefore,  in  no  case 
ought  to  be  presumed.  But,  more  than  this — it  is  well  known 
that  a  large  number  of  black  persons  is  entirely  free,  even  in 
the  slave-holding  states — the  laws  of  our  country  recognise  their 
right  to  freedom,  and  the  power  of  the  government  has  been 
wielded  for  their  protection,  as  citizens,  whenever  a  fit  case  has 
been  brought  to  public  notice.  With  what  propriety  of  reason 
ing,  then,  can  it  be  urged,  that  their  colour  should,  in  legal 
contemplation,  raise  a  presumption  against  their  liberty.  Even 
those  who  think  it  desirable  to  perpetuate  slavery — who  think 
it  no  evil  to  degrade  and  brutify  a  being  endowed  by  his  Crea 
tor  with  reason — need  apprehend  no  violation  of  their  legal 

*  The  doctrine  of  this  case  was  afterwards  confirmed,  so  that  it  may  be  con 
sidered  as  the  settled  law  of  North  Carolina.  See  2  Haywood's  Reports,  170. 

11 


82 

rights  of  property,  by  a  contrary  doctrine.  What  greater  diffi 
culty  can  exist,  to  satisfy  the  requisitions  of  the  law,  in  regard 
to  the  ownership  of  a  slave,  than  obtains  in  regard  to  the  own 
ership  of  ordinary  chattels.  Will  it  be  alleged,  that  fraud  may 
be  perpetrated  by  transferring  a  freeman  as  a  slave?  But,  is  not 
an  intelligent  creature,  endowed  with  the  faculty  of  speech,  at 
all  times,  capable  of  admonishing  a  purchaser,  against  such  a 
deception?  and,  when  a  communication  of  this  nature  is  made, 
ought  it  not  to  be  heeded? 

I  am  the  more  strenuous  in  opposition  to  this  doctrine  of  pre 
sumption  against  liberty,  because  it  is  obviously  the  fruitful 
source  of  the  abominable  crime  of  man-stealing — a  crime  which, 
in  all  nations,  seems  to  have  been  viewed  with  abhorrence,  and 
visited  with  severe  penalties.  The  wretch  who,  by  art  or  force, 
is  enabled  to  exhibit  a  person  of  African  extraction — "  with  a 
colour  not  his  own" — in  his  custody,  and  within  the  limits  of  a 
slave-holding  state,  is  exempted  from  the  necessity  of  making 
any  proof  how  he  obtained  him,  or  by  what  authority  he  claims 
him  as  a  slave.  Inspection  notifies  to  every  beholder,  that  the 
unhappy  person  said  to  be  a  slave,  is  presumed  so  to  be,  by  the 
law  of  the  land!  Supplemental  evidence  is  unnecessary — a 
forged  bill  of  sale  may  be  a  convenience  to  satisfy  the  timid 
and  over-cautious,  but  the  law — the  supreme  wisdom  of  man — 
deems  any  thing  more  than- colour  quite  superfluous.  Is  this 
just?  Does  it  become  a  free  and  enlightened  people  thus  to  de 
cree — thus  to  injure? 

By  the  laws  of  several  of  the  slave-holding  states,  manumit 
ted  and  other  free  persons  of  colour,  however  respectable  their 
characters,  may  be  arrested  when  in  the  prosecution  of  lawful 
business,  and  if  documentary  evidence  of  their  right  to  freedom 
cannot  be  immediately  produced  by  them,  they  are  thrown  into 
prison,  and  advertised  as  runaway  slaves.  Should  no  owner, 
as  must  always  be  the  case,  unless  injustice  is  done,  appear  with 
in  a  time  limited  by  law  for  the  purpose,  the  jailer  is  directed 
to  dispose  of  them,  at  public  auction,  as  unclaimed  fugitive 
slaves,  in  order  to  derive  from  the  proceeds  of  the  sale,  the 
means  of  defraying  the  expenses  of  their  detention  in  prison. 
The  unrighteous  doctrine  of  presumption  from  colour,  steps  in 


83 

and  consummates  the  iniquity,  and  the  freeman  and  his  posterity 
are  doomed  to  hopeless  bondage.  See  2  Brevard's  Digest, 
235-6-7;  Mississippi  Rev.  Code,  376-7;  Laws  of  Maryland,* 

*  The  laws  of  Maryland  here  referred  to,  having  excited  much  attention,  in 
consequence  of  the  arrest  and  imprisonment,  in  the  District  of  Columbia,  of  a 
free  black  man,  a  citizen  of  the  state  of  New  York,  named  Gilbert  Morton,  I 
am  induced  to  transcribe  them  in  this  place.  The  sixth  section  of  the  act  of 
1715,  chap.  44,  reads  thus:  "  And  for  the  better  discovery  of  runaways,  it  is 
hereby  enacted,  &c.  that  any  person  or  persons  whatsoever  within  this  province, 
travelling  out  of  the  county  where  he,  she  or  they  shall  reside  or  live,  without 
a  pass  under  the  seal  of  the  said  county,  for  which  they  are  to  pay  ten  pounds 
of  tobacco,  or  one  shilling  in  money,  such  person  or  persons,  if  apprehended, 
not  being  sufficiently  known  or  able  to  give  a  good  account  of  themselves,  it  shall  be 
left  to  the  discretion  and  judgment  of  such  magistrate  or  magistrates  before  whom 
such  person  or  persons  as  aforesaid  shall  be  brought,  to  judge  thereof,  and  if,  be 
fore  such  magistrate,  such  person  or  persons  so  taken  up,  shall  be  deemed  and 
taken  as  a  runaway,  he,  she  or  they,  shall  suffer  such  fines  and  penalties  as  are 
hereby  provided  against  run  a  ways."  Section  7.  "And  for  the  better  encourage 
ment  of  all  persons  to  seize  and  take  up  all  runaways,  &c.  all  and  every  such 
person  or  persons  as  aforesaid,  seizing  or  taking  up  such  runaways,  travelling 
without  passes  as  aforesaid,  not  being  able  to  give  a  sufficient  account  of  them 
selves  as  aforesaid,  shall  have  and  receive  two  hundred  pounds  of  tobacco,"  (by 
act  of  1806,  chap.  81,  §  5,  commuted  for  six  dollars,)  "  to  be  paid  by  the 
owner  of  such  runaway  servant,  negro  or  slave,  so  apprehended  and  taken  up; 
and  if  such  suspected  runaway  or  runaways  be  not  servants,  and  REFUSE  TO  PAY 
THK  SAME,  he,  she  or  they  shall  MAKE  SATISFACTION  BY  SERVITUDE  OR  OTHER 
WISE,  as  the  justices  of  the  provincial  and  county  courts,  where  such  person 
shall  be  so  apprehended  and  taken  up,  shall  think  fit."  Section  9.  "  That  at 
what  time  soever,  any  of  the  said  persons,  runaways,  shall  be  seized  by  any  per 
son  or  persons  within  this  province,  such  person  or  persons  so  apprehending 
or  seizing  the  same,  shall  bring  or  cause  him,  her  or  them,  to  be  brought  be 
fore  the  next  magistrate  or  justice  of  the  county  where  such  runaway  is  appre 
hended,  who  is  hereby  empowered  to  take  into  custody  or  otherwise,  him,  her  or 
them,  to  secure  and  dispose  of,  as  he  shall  think  fit,  until  such  person  or  persons 
so  seized  and  apprehended,  shall  give  good  and  sufficient  security  to  answer 
the  premises  the  next  court  that  shall  first  ensue  in  the  said  county,  which 
court  shall  secure  such  person  or  persons  till  he  or  they  can  make  satisfaction 
to  the  party  that  shall  so  apprehend  or  seize  such  runaways  or  other  persons,  as 
by  this  act  is  required,  except  such  person  shall  make  satisfaction  as  aforesaid 
before  such  court  shall  happen;  and  that  notice  may  be  conveniently  given  to 
the  master,  mistress,  dame  or  overseer  of  runaways  taken  up  as  aforesaid,  the 
commissioners  of  the  counties  shall  forthwith  cause  a  note  of  the  runaway's 
name,  so  seized  and  apprehended  as  aforesaid,  to  be  set  up  at  the  next  adjacent 
county  courts,  and  at  the  provincial  court  and  secretary's  office,  that  all  per- 


84 

act  of  1715  (April  session)  chap.  44,  §  (>,.  7  4'  9 — act  of  1719 
(May  sessioji)  chap.  2,  §  2— act  of  1802  (November  session) 
ch.  96,  §  2. 


sons  may  view  the  same,  and  see  where  sush  their  servants  are,  and  in  whose 
custody." 

The  foregoing  sections  apply  equally  to  the  cases  of  all  persons,  whether 
white  or  black,  who  may  be  found  travelling  without  passes,  out  of  the  county 
where  their  residences  are;  and  all  such,  at  the  discretion  of  a  magistrate,  may  be 
subjected  to  imprisonment  and  amercement.  But  the  last  section  of  the  same 
act,  while  it  bears,  with  a  severity  altogether  at  variance  with  the  spirit  of  a 
free  government,  upon  whites  unhappily  circumstanced  so  as  to  come  within 
the  terms  of  the  previous  enactments,  introduces  a  provision  by  which  they 
may  be  restored  to  freedom,  if  entitled  to  be  free;  and  yet  negroes  and  mulat- 
toes,  with  the  same  rights,  are  left  without  relief.  "  When  any  person  or  per 
sons  (except  negroes  and  mulattoes}  shall  be  found  travelling  without  passes  as 
aforesaid,  and  shall  be  taken  up  as  suspected  runaways,  and  by  any  justice  of 
the  peace  committed  to  the  custody  of  any  sheriff  or  gaoler  within  this  pro 
vince,  it  shall  not  be  lawful  for  any  such  sheriff  or  gaoler  to  hold  such  person 
in  custody  longer  than  six  mont/is;  and  if  such  person  can,  at  any  time  within 
the  said  six  months,  procure  a  certificate  or  other  justification  that  he  or  she 
is  no  servant,  he  or  she  shall  and  may,  by  order  of  any  two  justices  of  the 
county  where  such  person  is  committed  to  prison,  be  discharged  from  any  fur 
ther  imprisonment,  he  or  she  serving  such  sheriff' or  gaoler  or  his  assigns,  so  many 
days  as  he,  she  or  they  were  in  custody  of  such  sheriff  or  gaoler,  or  otherwise  pay 
ing  ten  pounds  of  tobacco  per  day  to  such  sheriff  or  gaoler  for  THEIR  IMPRISONMENT 
FEES,  and  no  more;  and  paying  unto  such  person  or  persons  who  took  up  such 
person  two  hundred  pounds  of  tobacco,  or  serving  him,  her  or  them  twenty  days  in  lieu 
thereof;  and  if  any  such  sheriff  or  gaoler  shall  detain  such  person  in  prison  after 
such  order  of  the  justices  aforesaid,  or  the  expiration  of  six  months,  and  payment 
often  pounds  of  tobacco  per  day  as  aforesaid,  such  sheriff  or  gaoler  shall  be 
liable  to  an  action  of  false  imprisonment."  Iniquitous  as  this  law  is,  it  is  obvi 
ous  that  the  object  of  the  legislature  could  not  be  reached  by  it.  It  offered, 
indeed,  a  bounty  to  the  sheriff  or  gaoler,  who,  by  neglecting  to  give  notice  of 
the  imprisonment  of  a  suspected  runaway,  might  protract  such  imprisonment 
till  the  value  of  his  services,  even  though  an  absolute  slave  for  life,  would  not 
be  equal  to  the  gaol  fees.  And  yet  without  some  further  legislation,  the  gaoler 
himself  would,  in  case  the  person  detained  was  not  a  runaway,  or  if  a  runaway 
should  not  be  demanded  by  his  master,  be  made  to  suffer  the  loss  of  such  ex 
pense  as  might  be  incurred  for  the  sustenance  of  the  suspected  runaway  during 
his  imprisonment.  The  lure  held  out  by  the  act  to  the  gaoler,  probably  produced 
the  abandonment  of  the  slave  in  some  instances  Ijy  the  master;  and  it  became 
necessary,  therefore,  for  the  legislature  to  repeal  the  act,  or  to  supply  its  defects. 
The  latter  part  of  the  disjunctive  was  naturally  preferred;  and,  on  the  eighth 
day  of  June,  1719,  after  reciting,  that  "  Whereas  by  the  act  of  assembly  re- 


85 

111.      THE    BENEFITS    OF    EDUCATION    ARE    WITHHELD    FROM 
THE  SLAVE. 

In  no  country  is  education  more  highly  valued,  or  its  benefits 

lating1  to  servants  and  slaves,  there  is  not  any  provision  made  what  shall  be  done 
with  such  runaway  servants  or  slaves  that  now  are  or  hereafter  shall  or  may  be 
taken  up  and  committed  to  the  custody  of  any  sheriff  within  this  province, 
where  the  master  or  owner  of  such  servant  or  slave,  having  due  notice  of  such 
servant's  or  slave's  being  in  the  custody  of  such  sheriff,  refuses  or  delays  to  re 
deem  such  servant  or  slave,  by  paying  their  imprisonment  fees,  and  such  other 
charge  as  has  or  may  accrue  for  taking  up  such  servant  or  slave;"  enacted, 
"  That,  &c.  every  sheriff  that  now  hath,  or  hereafter  shall  have,  committed 
into  his  custody,  any  runaway  servants  or  slaves,  after  one  month's  notice  given 
to  the  master  or  owner  thereof,  of  their  being  in  his  custody,  if  living  in  this 
province,  or  two  months'  notice  if  living  in  any  of  the  neighbouring  provinces, 
if  such  master  or  owner  of  such  servants  or  slaves  do  not  appear  within  the 
time  limited  as  aforesaid,  and  pay  or  secure  to  be  paid  all  such  imprisonment 
fees  due  to  such  sheriff  from  the  time  of  the  commitment  of  such  servants  or 
slaves,  and  also  such  other  charges  as  have  accrued  or  become  due  to  any  per 
son  for  taking  up  such  runaway  servants  or  slaves,  such  sheriff  is  hereby  autho 
rized  and  required  (such  time  limited  as  aforesaid,  being  expired)  immediately 
to  give  public  notice  to  all  persons,  by  setting  up  notes  at  the  church  and 
court-house  doors  of  the  county  where  such  servant  or  slave  is  in  custody,  of 
the  time  and  place  for  sale  of  such  servants  or  slaves,  by  him  to  be  appointed, 
not  less  than  ten  days  after  such  time  limited  as  aforesaid  being  expired,  and  at 
such  time  and  place  by  him  appointed  as  aforesaid,  to  proceed  to  sell  and  dispose 
of  such  servant  or  slave  to  the  highest  bidder,  and  out  of  the  money  or  tobacco 
which  such  servant  or  slave  is  sold  for,  to  pay  himself  all  such  IMPRISONMENT 
FEES  as  are  his  just  due,  for  the  time  he  has  kept  such  servant  or  slave  in  his 
custody,  and  also  to  pay  such  other  charges,  fees  or  reward  as  has  become  due 
to  any  person  for  taking  up  such  runaway  servant  or  slave,  and  after  such  pay 
ments  made,  if  any  residue  shall  remain  of  the  money  or  tobacco  such  servant 
or  slave  was  sold  for,  such  sheriff  shall  only  be  accountable  to  the  master  or 
owner  of  such  servant  or  slave  for  such  residue  or  remainder  as  aforesaid,  and 
not  otherwise."  Laws  of  Maryland.,  act  of 1719,  (May  session,}  chap.  2. 

Upon  the  enactment  of  this  law,  the  most  unprincipled  sheriff  should  have  been 
content.  It  became,  indeed,  not  only  his  interest,  but  the  interest  of  all  other 
persons,  to  apprehend  and  to  commit  to  prison  coloured  persons  especially — for 
these  might  be  detained  for  a  longer  period  than  six  months,  whether  free  or 
not;  the  right  of  the  taker  up  to  his  legal  reward  and  other  charges  was  secured 
to  him  by  a  LIEN  ON  THE  BODY  OF  THE  PRISONER,  and  the  sheriff  or  gaoler  was 
indemnified  in  the  same  manner  against  the  loss  of  his  imprisonment  fees.  And  by 
prolonging  the  imprisonment  until  the  fees  should  be  swelled  to  nearly  the 
value  of  the  prisoner,  if  a  slave,  the  master,  in  many  instances,  might  be  unable 
or  unwilling  to  redeem  him,  and  the  sheriff's  sale,  which  in  such  case  is  autho- 


86 

more  generally  diffused,  than  in  the  United  States.  The  con 
stitutions  of  nearly  all  the  states,  make  it  the  duty  of  the  respec- 

rized,  could  easily  be  turned  to  the  account  of  some  favourite  of  that  officer, 
and  eventually,  by  collusion,  to  his  own  pecuniary  advantage.  And  should  the 
suspected  runaway  not  be  a  slave,  yet,  in  a  land  where,  from  his  colour,  he  is 
presumed  to  be  so,  and  where  others  like  him  are  daily  "  made  merchandise 
of,"  the  facility  with  which  his  imprisonment,  aided  by  the  provisions  of  this 
act,  might  be  rendered  profitable  to  the  sheriff,  would  be  greatly  increased. 
But  whatever  may  have  been  the  true  cause,  the  prevalence  of  a  practice 
on  the  part  of  sheriffs,  of  prolonging  the  imprisonment  of  persons  apprehended 
as  runaways,  is  evidenced  by  an  act  of  assembly,  passed  the  twenty -second 
day  of  December,  1792,  entitled  "  An  ad  to  restrain  the  ill  practices  of  sheriffs, 
and  to  direct  their  conduct  respecting  runaways."  The  act  sets  forth,  that 
"  Whereas  it  is  represented  to  this  general  assembly,  that  the  sheriffs  of  the  re 
spective  counties  have  neglected  to  advertise  runaways,  to  the  great  injury  of  the 
owners;  therefore,  &,c.  That  it  be  the  duty  of  the  several  sheriffs,  See.  upon 
any  runaway  being  committed  to  their  custody,  to  cause  the  same  to  be  adver 
tised  in  some  public  newspaper  within  twenty  days  after  such  commitment, 
and  to  make  particular  and  minute  description  of  the  person,  clothes  and  bodily 
marks  of  such  runaway."  "And  if  no  person  shall  apply  for  such  runaway, 
within  the  space  of  thirty  days  from  such  commitment,  then  it  shall  be  the  duty 
of  such  sheriff,  if  residing  on  the  Western  Shore,  to  cause  the  runaway  to  be 
advertised  as  heretofore  directed,  in  the  Maryland  Journal  and  Georgetown 
Weekly  Leger;  and,  if  residing  on  the  Eastern  Shore,  to  cause  the  same  to  be 
advertised  in  the  Maryland  Herald  and  Maryland  Journal,  within  sixty  days 
from  such  commitment,  and  to  continue  the  same  therein  until  the  said  runa 
way  is  released  by  due  course  of  law."  Maryland's  Laws  of 1792,  (November 
session,}  chap.  72. 

In  that  part  of  the  District  of  Columbia  which  was  ceded  by  the  state  of 
Maryland  to  the  federal  government,  the  whole  of  these  laws  are  still  in  force. 
Shortly  after  the  date  of  the  cession,  however,  the  legislature  of  Maryland  re 
pealed  the  act  c/1719,  ch.  2,  and  the  act  of  1792,  ch.  72,  supplying  their  place 
by  the  following  regulations,  which,  as  it  will  be  perceived,  are  in  principle 
the  same  as  the  repealed  acts.  "  That  it  shall  be  the  duty  of  the  sheriffs  (re 
spectively)  of  the  several  counties  of  this  state,  &c.  upon  any  runaway  servant 
or  slave  being  committed  to  his  custody,  to  cause  the  same  to  be  advertised  in 
some  public  newspaper  or  papers  printed  in  the  city  of  Baltimore,  the  city  of 
Washington,  and  the  town  of  Easton,  and  in  such  other  public  manner  as  he 
shall  think  proper,  within  fifteen  days  after  such  commitment,  and  to  make  par 
ticular  and  minute  description  of  the  clothing,  person  and  bodily  marks  of  such 
runaway. "  "  If  the  owner  or  owners,  or  some  person  in  his,  her  or  their  behalf 
shall  not  apply  for  such  runaway  within  the  space  of  sixty  days  from  the  time 
of  advertising  as  aforesaid,  and  pay  or  secure  to  be  paid  all  such  legal  costs  and 
charges  as  have  accrued  by  reason  of  apprehending,  imprisoning  and  advertis 
ing  such  servant  or  slave,  it  shall  be  the  duty  of  such  sheriff  and  he  is  hereby 


87 

tive  legislatures  to  establish  and  support  seminaries  for  learning, 
adequate  to  the  wants  of  the  citizens.  Common  schools  are, 

required  and  directed  to  proceed  to  sell  such  savant  or  slave,  and  immediately 
to  give  public  notice  by  advertisements^  to  be  set  up  at  the  court-house  door 
and  such  other  public  places  as  he  shall  think  proper,  in  the  county  where 
such  servant  or  slave  is  in  custody,  of  the  time  and  place  for  sale  of  such  servant 
or  slave,  by  him  to  be  appointed,  not  less  than  twenty  days  after  the  tune  limit 
ed  as  aforesaid  has  expired,  and  at  such  time  and  place  shall  proceed  to  sell 
and  dispose  of  such  servant  or  slave  to  the  highest  bidder."  Laws  of  Maryland, 
c/1802,  (November  session,)  chap.  96,  §  1  fcf  2,  (passed  8th  of  January,  1803.) 

By  recurring  to  the  sections  of  the  law  of  1715,  above  transcribed,  it  will  be 
seen  that  magistrates  were  empowered  to  decide,  in  their  discretion,  whether 
the  person  ap^r^KelioreiiTZ^aTuna^ay  snouH' be  deemed  such,  and  be  accord 
ingly  committed  to  prison.  Whether  such  power  had  been  abused,  or  whether 
a  proper  exercise  of  it,  had  been  found  inconvenient  to  takers-up  and  sheriffs,  I 
will  not  presume  to  conjecture,  but,  in  1810,  (chap.  63,  §  1,)  legislative  inter 
position  was  called  into  action  in  the  following  extraordinary  measure :  "  Any 
court  or  any  judge  or  justice  of  this  state,  before  whom  any  negro  or  mulatto 
shall  be  brought  as  a  runaway,  shall  be  satisfied,  by  competent  testimony,  that 
the  said  negro  or  mulatto  is  not  a  runaway,  before  it  shall  be  lawful  for  the  said 
court,  judge  or  justice  to  discharge  the  said  negro  or  mulatto  from  the  custody 
of  the  person  or  persons  detaining  the  said  negro  or  mulatto  as  a  runaway, 
otherwise  than  by  a  commitment  to  the  gaol  of  the  county  of  which  he  is  a 
judge  or  justice." 

The  barbarous  severity  to  coloured  persons  which  pervades  the  whole  of 
the  laws  of  Maryland  on  this  subject,  has  at  length  been  somewhat  softened 
by  an  act  passed  February  third,  1818.  It  is  in  these  words:  "Hereafter, 
when  any  servant  or  slave  shall  be  committed  to  the  gaol  of  any  county  in  this 
state,  as  a  runaway,  agreeably  to  the  laws  now  in  force,  and  the  notice  re 
quired  to  be  given  by  law  by  the  sheriff  shall  have  been  given,  and  the  time 
for  their  detention  expired,  and  no  person  or  persons  shall  have  applied  for 
and  claimed  said  suspected  runaway,  and  proved  his,  her  or  their  title  to  such 
suspected  runaway,  as  is  now  required  by  law,  it  shall  be  the  duty  of  the  sheriff 
forthwith  to  carry  such  slave  or  slaves  before  some  judge  of  the  county  court  or 
judge  of  the  orphans'  court,  with  his  commitment,  and  such  judge  is  hereby 
required  to  examine  and  inquire,  by  such  means  as  he  may  deem  most  advisable, 
whether  such  suspected  runaway  be  a  slave  or  not,  and  if  he  shall  have  reason 
able  grounds  to  believe  that  such  suspected  runaway  is  a  slave,  he  may  remand 
such  suspected  runaway  to  prison,  to  be  confined  for  such  further  or  additional 
time  as  he  may  judge  right  and  proper;  and  if  he  shall  have  reason  to  believe 
that  such  suspected  runaway  is  the  slave  of  any  particular  person,  he  shall  cause 
such  notice  to  be  given  by  the  sheriff  to  such  supposed  owner,  as  he  may  think 
most  advisable;  but  if  said  judge  shall  not  have  reasonable  ground  to  believe  such 
suspected  runaway  to  be  a  slave,  he  shall  forthwith  order  such  suspected  runaway 
to  be  released,-  and  if  no  person  shall  apply  for  such  suspected  runaway  after 


88 

also,  provided  "  for  the  education  of  the  poor  gratis."  In  seve 
ral,  perhaps  in  all  of  the  free  states,  no  distinction  is  made  in 
the  distribution  of  the  public  bounty  towards  this  object,  be 
tween  white  and  coloured  children;  but  schools  are  constantly 
maintained  for  the  reception  and  instruction  of  poor  children  of 
every  class  and  complexion. 

A  different  policy  began  very  early  in  the  slave-holding  states. 
In  none  of  these  do  the  laws  interpose  to  afford  any  aid  or  faci 
lity  for  the  acquisition  of  learning  to  persons  of  colour,  whether 
slaves  or  freemen.  On  the  contrary,  the  extracts  which  I  shall 
make  from  the  laws  of  these  latter  states,  will  satisfactorily  de 
monstrate  the  truth  of  the  proposition  at  the  head  of  this  section, 
namely,  that  the  benefits  of  education  are  withheld  from  the 
slave — and,  I  might  add,  from  the  free  negro  also. 

South  Carolina  may  lay  claim  to  the  earliest  movement  in 
legislation  on  this  subject.  In  1740,  while  yet  a  province,  she 
enacted  this  law:  "  Whereas  the  having  of  slaves  taught  to 
write,  or  suffering  them  to  be  employed  in  writing,  may  be  at 
tended  with  great  inconveniences,  Be  it  enacted,  That  all  and 
every  person  and  persons  whatsoever,  who  shall  hereafter  teach 
or  cause  any  slave  or  slaves  to  be  taught  to  write,  or  shall  use 
or  employ  any  slave  as  a  scribe  in  any  manner  of  writing  what 
soever  hereafter  taught  to  write,  every  such  person  or  persons 
shall,  for  every  such  offence,  forfeit  the  sum  of  one  hundred 
pounds  current  money."  2  Brevard's  Digest,  243;  similar  in 
Georgia,  by  act  of  1770,  except  as  to  the  penalty,  which  is 
twenty  pounds  sterling.  Prince's  Digest,  455. 

Virginia  has  attained  the  same  end,  though  in  a  less  direct 
manner.  Her  Revised  Code  of  1819,  reiterates  an  enactment, 
"  That  all  meetings  or  assemblages  of  slaves  or  free  negroes  or 
mulattoes  mixing  and  associating  with  such  slaves  at  any  meet 
ing  house,  or  houses,  or  any  other  place,  &c.  in  the  night,  or  at 

he  may  be  so  remanded,  within  the  time  for  which  he  may  be  remanded, 
and  prove  his,  her  or  their  title  as  the  law  now  requires,  the  said  sheriff  shall, 
at  the  expiration  of  such  time,  relieve  and  discharge  such  suspected  runaway;  and 
in  either  case,  when  such  suspected  runaway  shall  be  discharged,  the  expense  of 
keeping  such  runaway  in  confinement  shall  be  levied  on  the  county,  as  other  county 
expenses  are  now  levied"  Laws  of  Maryland,  December  session  of  1817,  chap. 
112,  §6. 


89 

any  school  or  schools  for  teaching  them  reading  or  writing 
either  in  the  day  or  night,  under  whatsoever  pretext,  shall  be 
deemed  and  considered  an  unlawful  assembly;  and  any  justice 
of  a  county,  &c.  wherein  such  assemblage  shall  be,  either  from 
his  own  knowledge  or  the  information  of  others,  of  such  unlaw 
ful  assemblage,  &c.  may  issue  his  warrant  directed  to  any  sworn 
officer  or  officers,  authorizing  him  or  them  to  enter  the  house  or 
houses  where  such  unlawful  assemblages,  &c.  may  be,  for  the 
purpose  of  apprehending  or  dispersing  such  slaves,  and  to  inflict 
corporal  punishment  on  the  offender  or  offenders  at  the  discre 
tion  of  any  justice  of  the  peace,  not  exceeding  twenty  lashes." 

1  Rev.  Code,  424-5. 

So  in  South  Carolina,  in  addition  to  the  highly  penal  restraint 
upon  the  education  of  a  slave,  contained  in  the  law  already  cited, 
an  act  of  assembly  was  passed  in  1800,  enacting,  "  That  assem 
blies  of  slaves,  free  negroes,  mulattoes  and  mestizoes,  whether 
composed  of  all  or  any  of  such  description  of  persons,  or  of  all 
or  any  of  the  same  and  of  a  proportion  of  white  persons,  met 
together  for  the  purpose  of  mental  instruction  in  a  confined  or 
secret  place,  &c.  &c.  is  (are)  declared  to  be  an  unlawful  meeting, 
and  magistrates,  &c.  &c.  are  hereby  required,  &c.  to  enter  into 
such  confined  places,  &c.  &c.  to  break  doors,  &c.  if  resisted,  and 
to  disperse  such  slaves,  free  negroes,  &c.  &c.  and  the  officers 
dispersing  such  unlawful  assemblage,  may  inflict  such  corporal 
punishment,  not  exceeding  twenty  lashes,  upon  such  slaves, 
free  negroes,  S^c.  as  they  may  judge  necessary  for  DETERRING 

THEM    FROM    THE    LIKE    UNLAWFUL   ASSEMBLAGE  IN  FUTURE." 

2  Brevard's  Digest,  254.    And  another  section  of  the  same  act 
declares,  "That  it  shall  not  be  lawful  for  any  number  of  slaves, 
free  negroes,    mulattoes  or  mestizoes,   even  in  company  with 
white  persons,  to  meet  together  for  the  purpose  of  mental  in 
struction,  either  before  the  rising  of  the  sun  or  after  the  going 
down  of  the  same."     2  JBrevard's  Digest,  254-5. 

But  besides  acts  of  assembly,  which  in  general  apply  to 
the  whole  territory  of  the  particular  state,  many  of  the  towns 
and  cities  are  invested  with  authority  to  make  ordinances  which 
have  the  force  of  law  within  their  respective  corporate  limits. 
These  ordinances  seldom  meet  the  eye  of  the  inhabitants  of  other 

12 


90 

states;  I  find,  however,  in  the  Port  Folio  for  Jlpril,  1818, 
page  325,  a  brief  notice  of  one,  having  relation  to  the  subject  in 
hand,  adopted  by  the  councils  of  the  city  of  Savannah,  in  Georgia. 
Probably  the  editor  of  the  Port  Folio  copied  the  language  of  a 
Savannah  paper,  and  I  shall  therefore  transfer  it  without  altera 
tion.  "  The  city  has  passed  an  ordinance,  by  which  any  person 
that  teaches  any  person  of  colour,  slaveorfree,  toreador  write, 
or  causes  such  persons  to  be  so  taught,  is  subjected  to  a  fine  of 
thirty  dollars  for  each  offence;  and  every  person  of  colour  who 
shall  keep  a  school  to  teach  reading  or  writing  is  subject  to  a  fine 
of  thirty  dollars,  or  to  be  imprisoned  ten  days  and  whipped 
thirty-nine  lashes!!!"  This  ordinance,  it  will  be  perceived, 
extends  its  prohibitions  beyond  the  law  of  the  state,  inasmuch 
as  it  places  under  the  ban,  reading  as  well  as  writing,  and  em 
braces  not  the  case  of  the  slave  merely,  but  also  that  of  the  free. 
negro. 

With  such  legislative  obstacles  to  his  mental  improvement,  it 
ought  to  excite  no  surprise,  if  a  slave  having  the  ability  to  read 
or  write,  could  not  be  found  within  a  slave-holding  state.  But 
apart  from  these  obstacles  of  law,  the  condition  of  slavery  is 
such,  that  a  slave  capable  of  reading,  must  be,  in  most  of  the 
states,  a  prodigy  indeed.  His  life  is  ordinarily  passed  in  inces 
sant  toil.  The  laws,  as  I  have  already  shown,  secure  to  him  no 
portion  of  time  in  which  he  may  employ  himself  at  his  pleasure. 
He  is  awaked  from  his  slumbers,  at  the  call  of  his  master,  often 
before  the  dawn  of  day — he  continues  his  heartless  labour,  with 
but  slight  intermissions  for  rest  and  food,  till  night  has  closed 
around  him.  Hard-worked,  and  scantily  fed,  his  bodily  ener 
gies  are  exhausted — without  an  instructer  and  without  books, 
(for  he  has  not  the  means  to  procure  them,)  he  must  of  neces 
sity  remain  for  ever  ignorant  of  the  benefits  of  education. 

IV.  THE  MEANS  FOR  MORAL  AND  RELIGIOUS  INSTRUCTION 
ARE  NOT  GRANTED  TO  THE  SLAVE  ;  ON  THE  CONTRARY,  THE 
EFFORTS  OF  THE  HUMANE  AND  CHARITABLE  TO  SUPPLY  THESE 
WANTS  ARE  DISCOUNTENANCED  BY  LAW. 

One  of  the  plain  dictates  of  the  Christian  religion,  is  a  regard 
for  the  well-being  of  our  fellow  creatures.  It  is,  indeed,  largely 


91 

insisted  upon  as  a  duty,  both  in  the  Old  and  New  Testament. 
No  believer  in  the  Christian  religion  can  doubt,  that,  the  know 
ledge  of  its  precepts  and  promises  will  promote  the  happiness 
both  here  and  hereafter  of  every  accountable  creature;  nor  will 
such  a  one  deny,  that  a  negro,  though  a  slave,  is  a  member  of 
the  human  family — is  endowed  with  reason — has  a  soul  which 
is  immortal,  and  must  be  deemed  accountable  unto  GOD,  "  for 
the  deeds  done  in  the  body."  How  can  such  a  belief  be  reconciled 
with  a  practice  which  forbids  to  the  slave  access  to  the  gospel ; 
which,  as  far  as  the  master's  power,  so  to  do,  extends,  shuts 
out  from  him  the  knowledge  of  the  means  of  his  salvation.  • 

It  has  been  shown,  in  the  last  chapter,  that  one  of  the  means  I 
to  which  allusion  is  here  made,  namely,  mental  instruction,  is 
in  general  entirely  withheld  from  the  slave.  He  cannot  be  ex 
pected,  therefore,  to  learn  the  scriptures,  except  as  an  auditor. 
And  yet  in  none  of  the  slave-holding  states  are  any  facilities 
afforded  for  this  purpose.  No  time  is  secured  to  the  slave  by 
law;  no  place  provided  where  he  can  assemble  with  his  fellows 
to  hear  "  the  glad  tidings  of  salvation"  preached. 

It  is  idle  to  talk  of  accompanying  his  master  to  church — 
such  a  spectacle,  I  apprehend,  is  rarely  exhibited,  except  for  the 
special  convenience  of  the  master.  The  paucity  of  places  for 
worship,  in  the  slave-holding  states,  compared  with  the  number 
of  white  inhabitants,  prevents  the  exercise  of  this  privilege  to 
an  extent,  at  all  commensurate  with  the  religious  wants  of  the 
slaves. 

Besides,  if  no  other  impediment  existed,  the  rude  mind  of  the 
slave  could  not  comprehend  a  discourse  designed  for  the  refined 
taste  and  enlarged  capacity  of  the  master.  Christianity  demands 
that  these  unfortunate  beings  should  be  taught  to  read — that  build 
ings  should  be  erected  for  their  assembling  together  to  worship 
their  Creator — that  teachers  who  are  willing  and  qualified  to  ad 
minister  to  their  spiritual  necessities,  should  be  encouraged  to 
dedicate  their  time  and  their  talents  to  the  pious  service — that 
rest  should  be  allowed  to  the  slave  at  the  seasons  usually  allotted 
among  Christians  for  religious  worship,  and  especially  that  laws 
should  be  made  and  enforced  to  prevent  the  exaction  of  labour 


92 

from  the  slave  to  such  a  degree,  that  his  senses  are  overpowered 
by  sleep,  the  moment  his  body  ceases  to  be  active.* 

If  the  practice  of  the  slave-holding  states  is  in  accordance 
with  the  laws,  the  reverse  of  this  picture  will,  it  is  believed,  be 
found  true  in  most  respects.  In  a  law  enacted  by  the  state  of 
Georgia,  December  13,  1792,  with  the  title  "To  protect  reli 
gious  societies  in  the  exercise  of  their  religious  duties,"  it  is  re 
quired  of  every  justice  of  the  peace,  &c.  and  every  civil  officer 
of  a  county  being  present,  &c.  &c.  to  take  into  custody  any  per 
son  who  shall  interrupt  or  disturb  a  congregation  of  white  per 
sons  assembled  at  any  church,  &c.  and  to  impose  a  fine  on  the 
offender,  and  in  default  of  payment,  he  may  be  imprisoned,  &c. 
&c. ;  yet  the  same  laiv  concludes  in  these  words — "  no  congre 
gation  or  company  of  negroes  shall,  under  pretence  of  divine 
worship,  assemble  themselves  contrary  to  the  act  regulating  pa 
trols."  Prince's  Digest,  342.  I  have  not  been  able  to  discover 
the  law  here  referred  to  as  the  act  regulating  patrols,  but  the 
editor  of  the  Digest,  whom  I  presume  to  be  fully  competent 
to  resolve  the  difficulty,  quotes  the  seventh  section  of  an  act 
passed  May  10,  1770,  "for  ordering  and  governing  slaves, 
&c."  as  that  intended  to  be  designated  by  the  legislature.  This 
section  begins  with  a  recital,  "  Whereas  the  frequent  meeting, 
&c.  of  slaves  under  the  pretence  of  feasting  may  be  attended 
with  dangerous  consequences,"  and  proceeds  to  enact,  "That 
it  shall  be  lawful  for  every  justice  of  the  peace,  &c.  upon  his 
own  knowledge  or  information  received,  either  to  go  in  person, 

*  Mr.  Jefferson,  in  his  Notes  on  Virginia,  speaking1  of  slaves,  makes  the  fol 
lowing  remarks:  "  In  general,  their  existence  appears  to  participate  more  of 
sensation  than  reflection.  To  this  must  be  ascribed  their  disposition  to  sleep 
when  abstracted  from  their  diversions  and  unemployed  in  labour.  An  animal 
whose  body  is  at  rest  and  who  does  not  reflect,  must  be  disposed  to  sleep  of 
course."  See  Answer  to  Query  14.  I  do  not  dissent  from  this  doctrine.  It  is 
philosophically  true.  But  with  the  accurate  knowledge  which  Mr.  Jefferson 
possessed  as  to  the  actual  condition  of  the  slave,  it  seems  strange,  that  he 
should  have  omitted  to  include  as  a  reason  why  the  slave,  when  "  abstracted 
from  his  diversions  and  unemployed  in  labour,"  should  be  disposed  to  sleep, 
the  fatigue  induced  by  the  severity  of  his  labour.  The  disposition  to  sleep 
which  is  thus  indicated  as  characteristic  of  the  black,  is  equally  observable,  as 
far  as  I  am  able  to  ascertain,  among  the  labouring  class  of  whites. 


93 

or  by  warrant,  &c.  directed  to  any  constable,  &c.  to  command 
to  their  assistance  any  number  of  persons  as  (ivhicti)  they  shall 
see  convenient,  to  disperse  ANY  assembly  or  meeting  of  slaves 
which  may  disturb  the  peace  or  endanger  the  safety  of  his  ma 
jesty's  subjects,  and  every  slave  which  shall  be  found  and  taken 
at  such  meeting  as  aforesaid,  shall  and  may  by  order  of  such 
justice,  immediately  be  corrected  WITHOUT  TRIAL,  by  receiving 
on  the  bare  back  twenty -Jive  stripes  with  a  whip,  switch  or  cow- 
skin"*  &c.  Prince's  Digest,  447.  The  terms  of  this  prohibition 
in  relation  to  the  meeting  of  slaves  for  divine  worship,  are,  it 
must  be  admitted,  not  a  little  enigmatical;  yet,  with  the  aid  of 
the  twenty-five  lashes  of  the  cowskin,  the  most  stupid  negro 
will  be  rendered  apt  enough  to  comprehend  their  meaning. 

In  South  Carolina,  by  a  section  already  in  part  extracted,  a 
prohibition  though  not  absolute  in  its  terms,  yet  in  effect,  1 
suspect,  it  must  have  been  nearly  so,  was  made  in  1800.  The 
section  reads  thus:  "  It  shall  not  be  lawful  for  any  number  of 
slaves,  free  negroes,  mulattoes  or  mestizoes,  even  in  company 
with  white  persons,  to  meet  together  and  assemble  for  the  pur 
pose  of  mental  instruction  or  religious  worship,  either  before 
the  rising  of  the  sun  or  after  the  going  down  of  the  same.  And 
all  magistrates,  sheriffs,  militia  officers,  &c.  &c.  are  hereby 
vested  with  power,  &c.  for  dispersing  such  assemblies,"  &c. 
2  Brevard's  Digest,  254-5.  Three  years  afterwards,  upon  the 
petition,  as  the  act  recites,  of  certain  religious  societies,  the 
rigour  of  the  act  of  1800  was  slightly  abated  by  a  modification, 
which  forbids  any  person,  before  nine  o'clock  in  the  evening, 
"  to  break  into  a  place  of  meeting,  wherein  shall  be  assembled 
the  members  of  any  religious  society  of  this  state,  provided  a 
majority  of  them  shall  be  white  persons,  or  otherwise  to  dis- 


*  And  while  in  Georgia  slaves  are  thus  discouraged  from  assembling-  together 
for  the  purpose  of  divine  worship,  the  same  state,  in  a  spirit  which  I  by  no 
means  condemn,  has  adopted  the  following  as  a  standing  rule  for  the  govern 
ment  of  the  penitentiary.  "  It  shall  be  the  duty  of  the  keeper,  &c.  to  furnish 
them  (i.  e.  the  convicts)  with  such  moral  and  religious  books  as  shall  be  recom 
mended  by  the  inspectors — to  procure  the  performance  of  divine  service  on 
Sundays,  as  often  as  may  be."  See  rule  ISthfar  the  internal  government  of  the 
penitentiary  of  Georgia.  Prince's  Digest,  386-7. 


94 

turb  their  devotion,  unless  such  person,  &e.  so  entering  the  said 
place  (of  worship)  shall  have  first  obtained  from  some  magistrate 
appointed  to  keep  the  peace,  &c.  a  warrant,  &c.  in  case  a  magis 
trate  shall  be  then  actually  within  the  distance  of  three  miles 
from  such  place  of  meeting,  otherwise  the  provisions,  &c.  (of  the 
act  of  1800,  above  cited)  to  remain  in  full  force."  2  Brevard's 
Digest,  261.  If  this  latter  act  yields  to  the  slave  a  privilege 
in  assembling  for  divine  worship  beyond  what  he  possessed  be 
fore,  it  must  consist,  it  appears  to  me,  chiefly  in  preventing  in 
terruptions  by  persons,  who,  acting  from  a  sense  of  official 
obligation,  might  deem  themselves  compelled,  by  the  provisions 
of  the  former  act,  to  hunt  out  and  disperse  the  congregations  of 
negro  worshippers  wherever  they  might  be  found.  For  it  must 
happen,  1  apprehend,  very  frequently,  that  the  quorum  of  white 
persons  cannot,  with  much  certainty,  be  depended  upon. 
And,  in  such  case,  the  poor  slave,  disappointed  in  his  expecta 
tions  of  the  quorum,  will  be  at  once  subjected  to  the  terrible 
penalty  of  the  twenty-five  lashes  of  the  cowskin  on  his  bare 
back,  well  laid  on ! ! 

In  Virginia,  it  will  be  remembered,  that  "  all  meetings,  &c. 
of  slaves,  free  negroes  and  mulattoes  mixing,  &c.  with  such 
slaves  at  any  meeting  house,  &c.  or  any  other  place,  &c.  in 
the  night,  under  any  pretext  whatsoever,  are  declared  to  be  un 
lawful  assemblies,  and  the  civil  power  may  disperse  the  same, 
and  inflict  corporal  punishment  on  the  offenders."  Slaves  may, 
however,  attend  at  church  on  any  day  of  public  worship. 

Mississippi  has  adopted  the  law  of  Virginia,  with  a  proviso, 
that  the  master  or  overseer  of  a  slave  may,  in  writing,  grant 
him  permission  to  attend  a  place  of  religious  worship,  at  which 
the  minister  may  be  white  and  regularly  ordained  or  licensed, 
or,  at  least,  two  discreet  and  reputable  white  persons  appointed 
by  some  regular  church  or  religious  society,  shall  attend.  Mis 
sissippi  Rev.  Code,  390. 

An  opinion  seems,  at  one  period,  to  have  obtained  in  many 
of  the  states,  that  by  consenting  to  the  baptism  of  his  slave, 
the  master  virtually  enfranchised  him.  To  remove  the  pretext 
which  was  thus  furnished,  for  withholding  the  administration 
of  a  rite  so  commonly  practised  among  Christians,  the  following 


95 

brief  section  was  enacted  in  Maryland.  "  Forasmuch  as  many 
people  have  neglected  to  baptize  their  negroes,  or  suffer  them 
to  be  baptized,  on  a  vain  apprehension  that  negroes  by  receiv 
ing  the  sacrament  of  baptism,  are  manumitted  and  set  free, 
Be  it  enacted,  fyc.  That  no  negro  or  negroes,  by  receiving 
the  holy  sacrament  of  baptism,  is  thereby  manumitted  or  set 
free,  nor  hath  any  right  or  title  to  freedom  or  manumission, 
more  than  he  or  they  had  before,  any  law,  usage  or  custom  to 
the  contrary  notwithstanding.  JLct  of  1715,  chap.  44,  §  23. 
So  in  the  year  1711,  the  legislature  of  South  Carolina,  deemed 
a  similar  act  necessary.  "  Since,"  according  to  the  language 
of  the  preamble,  "  charity  and  the  Christian  religion  which  we 
profess,  oblige  us  to  wish  well  to  the  souls  of  all  men;  and  that 
religion  may  not  be  made  a  pretence  to  alter  any  man's  proper 
ty  and  right,  and  that  no  persons  may  neglect  to  baptize  their 
negroes  or  slaves,  or  suffer  them  to  be  baptized,  for  fear  that 
thereby  they  should  be  manumitted  and  set  free,  Be  it,  8?c. 
enacted.  That  it  shall  be,  and  is  hereby  declared  lawful,  for 
any  negro,  or  Indian  slave,  or  any  other  slave  or  slaves  what 
soever,  to  receive  and  profess  the  Christian  religion,  and  be 
thereunto  baptized."  2  Brevard's  Digest,  229.  The  section 
then  provides,  that  such  profession  of  religion  and  submission 
to  baptism,  shall  not  be  construed  to  effect  an  emancipation  of 
any  slave,  &c.* 

*  The  doubts  which  gave  rise  to  these  laws  of  Maryland,  and  South  Caro 
lina,  probably  originated  in  two  judicial  investigations  which  had  occurred  in 
England,  a  short  time  previously.  The  first  of  these,  is  reported  in  3  Mo 
dem  Reports,  120-1.  (A.  D.  1686-7)  and  is  there  thus  stated:  "  Sir  Thomas 
Grantham  bought  a  monster  in  the  Indies,  which  was  a  man  of  that  country, 
who  had  the  perfect  shape  of  a  child  growing  out  of  his  breast,  as  an  excres- 
cency,  all  but  the  head.  This  man  he  brought  hither,  (i.  e.  to  England)  and 
exposed  to  the  sight  of  the  people  for  profit.  The  Indian  turns  Christian 
and  was  baptized,  and  was  detained  from  his  master,  who  brought  a  liomine 
replegiando,  (i.  e.  a  writ  by  which  his  title  to  retain  the  man  as  property  might 
l)e  legally  tested.)  The  sheriff  returned,  that  he  had  replevied  the  body, 
&c.:  And  then  the  Court  of  Common  Pleas,  BAILED  HIM."  How  the  case  was 
ultimately  disposed  of,  does  not  appear,  but  the  proceeding  even  thus  far,  was 
calculated  to  excite  a  fear,  lest  the  profession  of  Christianity  and  the  admi 
nistration  of  baptism,  might  be  decided  to  entitle  the  slave  to  the  privileges 
of  a  free  man. 


96 

I  know  of  no  exception  to  the  general  bearing  of  the  forego 
ing  laws  and  observations,  unless  the  following  concise  enact 
ment  of  the  legislature  of  Louisiana,  may  be  thought  to  form 
one.  "It  shall  be  the  duty  of  every  owner,  to  procure  to  his 
sick  slaves,  all  kinds  of  temporal  and  spiritual  assistance  which 
their  situation  may  require."  I  Martin's  Digest,  610.  Giv 
ing  to  this  provision,  the  most  favourable  interpretation,  it  is 
but  a  kind  of  death-bed  charity. 

V.  SUBMISSION  is  REQUIRED  OF  THE  SLAVE  NOT  TO  THE 

In  1696,  The  question,  whether  the  baptism  of  a  negro  slave,  WITHOUT  THE 
PRIVITT  OB  CONSENT  OF  HIS  MASTER,  emancipated  the  slave,  underwent  an 
elaborate  discussion,  before  the  judges  of  the  King's  Bench.  Owing  to  a 
misconception  of  the  form  of  the  action,  a  final  decision  was  not  given,  and 
the  plaintiff,  being,  of  course,  unsuccessful  on  that  occasion,  the  doubts 
which  had  resulted  from  the  former  case,  were  strengthened  rather  than  im 
paired. 

The  arguments  of  the  counsel  for  the  defendant,  are  sufficiently  curious  to 
deserve  transcription:  "Being  baptized,  according  to  the  use  of  the  church, 
he  (the  slave)  is  thereby  made  a  Christian,  and  Christianity  is  inconsistent 
with  slavery.  And  this  was  allowed  even  in  the  time  when  the  Popish  reli 
gion  was  established,  as  appears  by  Littleton,  for  in  those  days,  if  a  villain, 
had  entered  into  religion,  and  was  professed,  as  they  called  it,  the  lord  could 
not  seize  him?  and  the  reason  there  given  is,  because  he  was  dead  in  law,  and 
if  the  lord  might  take  him  out  of  his  cloister,  then  he  could  not  live  accord 
ing  to  his  religion.  The  like  reason  may  now  be  given  for  baptism,  being  in 
corporated  into  the  laws  of  the  land;  if  the  duties  which  arise  thereby  cannot 
be  performed  in  a  state  of  servitude,  the  baptism  must  be  a  manumission. 
That  such  duties  cannot  be  performed,  is  plain,  for  the  persons  baptized  are 
to  be  confirmed  by  the  diocesan,  when  they  can  give  an  account  of  their 
faith,  and  are  enjoined  by  several  acts  of  parliament,  to  come  to  church.  But 
if  the  lord  hath  still  an  absolute  property  over  him,  then  he  might  send  him 
far  enough  from  the  performance  of  those  duties,  viz.  into  Turkey,  or  any 
other  country  of  infidels,  where  they  neither  can  or  will  be  suffered  to  exer 
cise  the  Christian  religion."  In  conclusion,  the  counsel  remarks,  "It  is  ob 
served  among  the  Turks,  that  they  do  not  make  slaves  of  those  of  their  own 
religion,  though  taken  in  war;  and  if  a  Christian  be  so  taken,  yet  if  he  renounce 
Christianity  and  turn  Mahometan,  he  doth  thereby  obtain  his  freedom.  And  if 
this  be  a  custom,  allowed  among  infidels,  then  baptism,  in  a  Christian  nation, 
as  this  is,  should  be  an  immediate  enfranchisement  to  them,  as  they  should 
thereby  acquire  the  privileges  and  immunities  enjoyed  by  those  of  the  same 
religion,  and  be  entitled  to  the  laws  of  England."  See  5  Modern  Repotis,  190- 
1.  Chamberline  vs.  Hervey, 


97 

WILL  OP   HIS  MASTER  ONLY,    BUT  TO   THE  WILL    OF   ALL  OTHER 
WHITE  PERSONS. 

While  the  institution  of  slavery  exists,  every  thing  like  re 
sistance  to  the  master's  lawful  authority  should  be  decisively 
checked.  Strict  subordination  must  be  exacted  from  the  slave, 
or  bloodshed  and  murders  will  unavoidably  ensue.  The  laws 
of  the  slave-holding  states  demand,  however,  a  much  larger 
concession  of  power  to  the  master,  than  is  here  granted — they 
demand  that  the  life  of  the  slave  shall  be  in  the  master's  keep 
ing — that  the  slave  having  the  physical  ability  to  avoid  the  in 
fliction  of  a  barbarous  and  vindictive  punishment  by  his  master, 
shall  not  be  permitted  to  do  so.  They  go  indeed,  even  beyond 
this — they  place  the  slave  under  the  like  restriction,  in  relation 
to  every  white  person,  without  discrimination  as  to  character,  and 
with  but  little  consideration  as  to  motives.  Thus  it  is  enacted 
in  Georgia — "If  any  slave  shall  presume  to  strike  any  white 
person,  such  slave,  upon  trial  and  conviction  before  the  justice 
or  justices,  according  to  the  directions  of  this  act,  shall  for  the 
first  offence,  suffer  such  punishment  as  the  said  justice  or  jus 
tices  shall,  in  his  or  their  discretion  think  fit,  not  extending  to 
life  or  limb;  and  for  the  second  offence,  suffer  DEATH." — 
Prince's  Digest,  450.  The  law  of  South  Carolina,  2  Bre- 
vard's  Digest,  235,  is  in  the  same  words,  except  that  death 
is  not  made  the  punishment  of  the  second,  but  of  the  third 
offence.  In  both  of  these  states,  a  proviso  is  annexed  to  this 
law,  which  shows  plainly,  that  however  wanton,  or  dangerous 
may  be  the  attack  upon  the  slave,  he  is  still  compelled  to  sub 
mit.  "  Provided  always,  that  such  striking,  &c.,  be  not  done 
by  the  command,  and  in  the  defence  of  the  person  or  property 
of  the  OWNER,  OR  OTHER  PERSON  having  the  care  and  govern 
ment  of  such  slave,  in  which  case,  the  slave  shall  be  wholly  ex 
cused,  and  the  owner  or  other  person,  &c.,  shall  be  answerable 
as  if  the  act  had  been  committed  by  himself." 

In  Maryland,  act  of  1723,  chap.  xv.  §  4,  a  justice  of  the 
peace,  for  this  offence,  may  direct  the  offender's  ears  to  be 
cropt — and  this,  though  he  be  a  free  black.  In  Kentucky,  the 
same  general  principle  is  recognized,  though  enforced  by  penal 
ties  much  less  severe;  yet  there,  as  in  Maryland,  free  coloured 

13 


98 

persons  are  included.  "  If  any  negro,  mulatto,  or  Indian,  bond 
or  free,  shall  at  any  time,  lift  his  or  her  hand,  in  opposition  to 
any  person,  not  being  a  negro,  mulatto,  or  Indian,  he  or  she 
so  offending,  shall  for  every  such  offence,  proved  by  the  oath 
of  the  party,  before  a  justice  of  the  peace  of  the  county  where 
such  offence  shall  be  committed,  receive  thirty  lashes  on  his  or 
her  bare  back,  well  laid  on,  by  order  of  such  justice."  2 
Lift,  and  Swi.  Digest,  1153.  Nearly  similar  to  this  law  of 
Kentucky,  was  that  of  Virginia,  from  the  year  1680,  to  the 
year  1792,  at  which  latter  date,  the  following  exception  was 
added,  "  except  in  those  cases  where  it  shall  appear  to  such 
justice,  that  such  negro  or  mulatto,  was  wantonly  assaulted, 
and  lifted  his  or  her  hand  in  his  or  her  defence."  1  Rev.  Code, 
426-7. 

There  is  a  section  of  a  law  in  Louisiana,  which,  though  in 
terms,  applying  to  free  persons  of  colour  only,  may  be  pro 
perly  cited  to  evidence  the  sentiments  which  are  entertain 
ed  there  on  this  subject.  The  gravity  with  which  the 
strange  principle  it  asserts,  is  declared,  will  of  itself,  ex 
cuse  its  introduction  here,  though  not  altogether  congruous 
with  the  main  object  of  this  sketch. — "Free  people  of  colour 
ought  never  to  insult  or  strike  white  people,  nor  presume  to 
conceive  themselves  equal  to  the  whites;  but  on  the  contrary, 
they  ought  to  yield  to  them  on  every  occasion,  and  never  speak 
or  answer  them,  but  with  respect,  under  the  penalty  of  impri 
sonment,  according  to  the  nature  of  the  offence."  1  Martin's 
Digest,  640-42. 

My  chief  objection  to  these  laws,  is,  that  they  furnish  a 
pretext,  and  may  I  not  say,  an  inducement  to  an  ignoble 
mind,  to  oppress  and  to  tyrannise  over  the  defenceless  slave. 
He  must  patiently  endure  every  species  of  personal  injury, 
which  a  white  person,  however  brutal  and  ferocious  his  dispo 
sition, — be  he  a  drunkard,  or  even  a  maniac, — may  choose  to 
offer. 

Several  of  the  slave-holding  states  have  adopted  laws, 
which  are  highly  objectionable  for  the  reason  just  given. 
The  subjoined  may  be  taken  as  a  specimen:  "If  any  slave 
ehall  happen  to  be  slain  for  refusing  to  surrender  him  or  herself, 


99 

contrary  to  law,  or  in  unlawful  resisting  any  officer  or  other 
person,  who  shall  apprehend  or  endeavour  to  apprehend,  such 
slave  or  slaves,  &c. ,  such  officer  or  other  person  so  killing 
such  slave  as  aforesaid,  making  resistance,  shall  be,  and  he  is 
by  this  act,  indemnified  from  any  prosecutiou  for  such  killing 
aforesaid,  &c."  Maryland  Laws,  act  0/1751,  chap.-xiv.  §  9. 
And  by  the  negro  act  of  1740,  of  South  Carolina,  it  is  de 
clared,  "if  any  slave,  who  shall  be  out  of  the  house  or  planta 
tion  where  such  slave  shall  live,  or  shall  be  usually  employed, 
or  without  some  white  person  in  company  with  such  slave,  shall 
refuse  to  submit  to  undergo  the  examination  of  any  white  per 
son,  it  shall  be  lawful  for  any  such  white  person  to  pursue,  ap 
prehend  and  moderately  correct  such  slave;  and  if  such  slave 
shall  assault  and  strike  such  white  person,  such  slave  may  be 
lawfully  killed!!"  2  Brevard's  Digest,  231. 

VI.  THE  PENAL  CODES  OF  THE  SLAVE-HOLDING  STATES  BEAR 
MUCH  MORE  SEVERELY  UPON  SLAVES,  THAN  UPON  WHITE  PER 
SONS. 

A  being,  ignorant  of  letters,  unenlightened  by  religion,  and 
deriving  but  little  instruction  from  good  example,  cannot  be 
supposed  to  have  right  conceptions  as  to  the  nature  and  extent 
of  moral  or  political  obligations.  This  remark  with  but  a  slight 
qualification,  is  applicable  to  the  condition  of  the  slave.  It  has 
been  just  shown,  that  the  benefits  of  education  are  not  confer 
red  upon  him,  while  his  chance  of  acquiring  a  knowledge  of 
the  precepts  of  the  gospel  is  so  remote,  as  scarcely  to  be  ap 
preciated.  He  may  be  regarded,  therefore,  as  almost  without 
the  capacity  to  comprehend  the  force  of  laws,  and,  on  this  ac 
count,  such  as  are  designed  for  his  government  should  be  re 
commended  by  their  simplicity  and  mildness. 

His  condition  suggests  another  motive  for  tenderness  on  his 
behalf  in  these  particulars.  He  is  unable  to  read,  and  holding 
little  or  no  communication  with  those  who  are  better  informed 
than  himself;  how  is  he  to  become  acquainted  with  the  fact, 
that  a  law  for  his  observance  has  been  made.  To  exact  obedi 
ence  to  a  law  which  has  not  been  promulgated, — which  is  un 
known  to  the  subject  of  it — has  ever  been  deemed,  most  unjust 


100 

and  tyrannical.  The  reign  of  Caligula,  were  it  obnoxious  to 
no  other  reproach  than  this,  would  never  cease  to  be  remember 
ed  with  abhorrence. 

The  lawgivers  of  the  slave-holding  states,  seem,  in  the  for 
mation  of  their  penal  codes,  to  have  been  uninfluenced  by  these 
claims  of  the  slave,  upon  their  compassionate  consideration. 
The  hardened  convict  moves  their  sympathy,  and  is  to  be 
taught  the  laws  before  he  is  expected  to  obey  them;*  yet,  the 
guiltless  slave,  is  SUBJECTED  TO  AN  EXTENSIVE  SYSTEM  OP 

CRUEL  ENACTMENTS,  OF  NO  PART  OP  WHICH,  PROBABLY,  HAS 
HE  EVER  HEARD. 

Parts  of  this  system  apply  to  the  slave  exclusively,  and  for 
every  infraction  a  large  retribution  is  demanded — while  with 
respect  to  offences  for  which  whites  as  well  as  slaves,  are  ame 
nable,  punishments  of  much  greater  severity  are  inflicted 
upon  the  latter  than  upon  the  former. 

With  very  few  exceptions,  the  penal  laws,  to  which  slaves 
only  are  subject,  relate  not  to  violations  of  the  moral  or  divine 
laws; — positive  institution,  is  their  only  sanction.  Thus,  if  a 
slave  is  found  beyond  the  limits  of  the  town  in  which  he  lives, 
or  off  the  plantation  where  he  is  usually  employed,  without  the 
company  of  a  white  person,  or  without  the  written  permission 
of  his  master,  employer,  &c. ,  any  person  may  apprehend  him 
and  punish  him,  with  whipping  on  the  bare  back,  not  exceed 
ing  twenty  lashes."  2  Brevard's  Dig.  231.  Prince's  Dig.  447. 
In  Mississippi,  a  similar  punishment,  by  direction  of  a  justice 
of  the  peace.  Mississippi  Rev.  Code,  371.  So,  also,  in  Virgi 
nia,  and  Kentucky,  at  the  discretion  of  the  justice,  both  as  to 
the  imposition  of  the  punishment,  and  the  number  of  stripes.— 
1  Virg.  Rev.  Code,  422.  2  Litt.  and  Swi.  Dig.  1150,  and 
see  2  Missouri  Laws,  741,  §  2,  and  ibid,  614. 

*  "  It  shall  be  the  duty  of  the  keeper  (i.  e.  of  the  Penitentiary, )  on  the  re 
ceipt  of  each  prisoner,  to  read  to  him  or  her,  such  parts  of  the  penal  laws  of 
this  state,  as  impose  penalties  for  escape,  and  to  make  all  the  prisoners  in  the 
penitentiary  acquainted  with  the  same.  It  shall  also  be  his  duty,  on  the  dis 
charge  of  such  prisoner,  to  read  to  him  or  her,  such  parts  of  the  said  laws  as  im 
pose  additional  punishments  for  the  repetition  of  offences."  Rule  12th,  for  the 
internal  government  of  the  Penitentiary  of  Georgia — sec.  xxvi.  of  the  Penitenti 
ary  act  of  1816.  Prince's  Digest,  386. 


101 

And  if  a  slave  shall  be  out  of  the  house,  &c.  or  off  the  plan 
tation,  &c.  of  his  master,  &c.  without  some  white  person  in 
company,  &c.  and  shall  refuse  to  submit  to  an  examination  of 
any  white  person,  8?c.,  such  white  person  may  apprehend  and 
moderately  correct  him,  and  if  he  shall  assault  and  strike  such 
white  person,  he  may  be  lawfully  killed.  2  Brev.  Dig.  231. 
Prince's  Dig.  447,  §  5,  act  of  1770,  and  page  348,  No.  43, 
title,  Penal  laws. 

If  a  slave  shall  presume  to  come  upon  the  plantation  of  any 
person,  without  leave  in  writing  from  his  master,  employer,  &c. 
not  being  sent  on  lawful  business,  the  owner  of  the  plantation 
may  inflict  ten  lashes  for  every  such  offence.  1  Virg.  Rev. 
Code,  422-3.  Mississippi  Rev.  Code,  371.  2  Lift,  and  Sivi. 
Dig.  1150.  2  Missouri  Laws,  741,  §3.  and  see  Maryland 
laws,  act  of  1723.  chap.  15,  §  1  and  5. 

It  shall  be  lawful  for  any  person  who  shall  see  more  than 
seven  men  slaves,  without  some  white  person  with  them,  tra 
velling  or  assembled  together,  in  any  high  road,  to  apprehend 
such  slaves,  and  to  inflict  a  whipping,  on  each  of  them,  not 
exceeding  twenty  lashes  a  piece.*  2  Brev.  Dig.  243.  Prince's 
Dig.  454.  In  Delaware,  more  than  six  men  slaves  meeting 

*  It  is  with  extreme  regret,  I  have  been  apprized  by  the  newspapers,  that 
tills  law  has  been  recently  introduced  into  the  Floridas,  by  our  territorial  gov 
ernment  there.  The  humanity  which  the  Spaniards  manifest  towards  their 
slaves,  rendered  such  a  measure  unnecessary  during-  the  many  years  in  which 
these  provinces  were  under  their  dominion.  Scarcely  is  the  power  of  our  re 
public  recognized  there  by  the  free,  when  a  more  galling  oppression  pro 
claims  its  existence  to  the  slave.  Well,  indeed,  might  even  the  inhabitant 
of  our  slave-holding  states,  blush  with  shame,  when  a  sense  of  justice  wrung 
from  him  the  humbling  confession  which  he  thus  recorded:  "The  indulgent 
treatment  of  their  slaves,  by  which  the  Spaniards  are  so  honourably  distin 
guished,  and  the  ample  and  humane  code  of  laws  which  they  have  enacted, 
and  also  enforce,  for  the  protection  of  the  blacks,  both  bond  and  free,  occa 
sioned  many  of  the  Indian  slaves  (i.  e.  of  East  Florida,)  who  were  apprehen 
sive  of  falling  into  the  power  of  the  Americans,  (i.  e.  citizens  of  the  United 
States,)  and  also  most  of  the  free  people  of  colour  who  resided  in  St.  Augus 
tine,  to  transport  themselves  to  Havanna,  as  soon  as  they  heard  of  the  approach 
of  the  American  authorities."  See  "  Notices  of  East  Florida,  with  an  account 
of  the  Seminole  nation  of  Indians,  by  a  recent  traveller  in  the  Province,"  page 
42.  From  the  tenor  of  many  of  his  remarks,  the  writer  is  evidently  an  inha 
bitant  of  one  of  our  slave-holding  states. 


.  .,    . 

102 

together,  not  belonging  to  one  master,  unless  on  lawful  busi 
ness  of  their  owners,  may  be  whipped  to  the  extent  of  twenty- 
one  lashes,  each.  Delaware  Laws,  104. 

If  a  slave  or  Indian  shall  take  away  or  let  loose,  any  boat  or 
canoe  from  a  landing  or  other  place  where  the  owner  may  have 
made  the  same  fast,  for  the  first  offence  he  shall  receive  thirty- 
nine  lashes  on  the  bare  back,  and  for  the  second  offence  shall 
forfeit  and  have  cut  off  from  his  head  ONE  EAR.*  2  Brev.  Dig. 
228.  So,  as  to  the  first  offence,  in  North  Carolina  and  Ten 
nessee.  Haywood's  Manual,  78,  act  0/1741,  chap.  13. 

For  keeping  or  carrying  a  gun,  or  powder,  or  shot,  or  a  club, 
or  other  weapon  whatsoever,  offensive  or  defensive,  a  slave  in 
curs,  for  each  offence,  thirty-nine  lashes,  by  order  of  a  justice 
of  the  peace.  2  Lift.  4*  Swi.  1150;  1  Virg.  Rev.  Code,  423; 
2  Missouri  Laws,  741,  §4;  and  in  North  Carolina  and  Tennes 
see,  twenty  lashes,  by  the  nearest  constable,  without  a  convic 
tion  by  the  justice.  Haywood's  Manual,  521. 

For  having  any  article  of  property  for  sale,  without  a  ticket 
of  permission  from  his  master,  particularly  specifying  the 
same,  and  authorizing  it  to  be  sold  by  the  slave,  ten  lashes,  by 
order  of  the  captain  of  the  patrol/ers,  2  Litt.  8?  Swi.  981;  and 
if  the  slave  be  taken  before  a  magistrate,  thirty-nine  lashes  may 
be  ordered.  Ibid.  So,  in  North  Carolina  and  Tennessee,  Hay- 
wood's  Manual,  529;  and  see  Mississippi  Rev.  Code,  390. 

A  slave  being  at  an  unlawful  assembly, ,t  the  captain  of  pa- 


*  To  take  away  a  canoe,  &c.  for  the  temporary  accommodation  of  the  taker, 
with  the  intention  of  returning1  it  again  in  a  few  minutes,  is  a  very  common 
practice  in  countries,  (such  as  South  Carolina  was,  at  the  date  of  this  law,  i.  e. 
1695-6,)  where,  from  the  paucity  or  poverty  of  the  inhabitants,  few  bridges 
have  been  erected.  The  offence,  however,  of  the  poor  slave  or  Indian  would 
be  consummated  even  though  the  owner  should  not  make  the  discovery,  and 
of  course  suffer  no  inconvenience,  till  after  the  canoe,  &c.  had  been  returned. 

f  The  augmentation  of  crimes,  under  the  name  of  unlawful  assemblies,  is  a 
favourite  measure  of  despotic  governments  for  the  suppression  of  liberal  prin 
ciples.  In  this  country,  the  experiment  has  never  been  tried  by  statutory  pro 
visions,  except  in  reference  to  the  black  population.  The  reader  will  recol 
lect,  that  in  the  chapter  treating  of  education  and  religious  privileges,  several 
acts  of  the  slave-holding  states  were  given,  in  which  these  unlawful  assemblies 
were  spoken  of.  A  complete  enumeration  of  the  crimes  thus  created  (for  all 


103 

trailers  may  inflict  ten  lashes  upon  him.  2  Litt.  fy  Swi.  981;  2 
Missouri  Laws,  741,  §2,  and  ibid,  614.  If  taken  before  a 
magistrate,  he  may  direct  thirty-nine  lashes.  2  Litt.  Sf  Swi. 
981. 

For  travelling  by  himself  from  his  master's  land  to  any  other 
place,  unless  by  the  most  usual  and  accustomed  road,  the  owner 
of  the  land  on  which  such  slave  may  be  found  is  authorized  to 
inflict  forty  lashes  upon  him.  Haywood's  Manual,  518,  (act  of 
1729.)  For  travelling  in  the  night,  without  a  pass,  forty  lashes, 
ibid ;  or  being  found  in  another  person's  negro  quarters  or  kitch 
en,  forty  lashes,  ibid;  and  every  negro  in  whose  company  suck 
vagrant  slave  shall  be  found,  incurs  also  twenty  lashes.  Ibid. 

Any  person  may  lawfully  kill  a  slave  who  has  been  outlawed* 
for  running  away  and  lurking  in  swamps,  &c.  &c.  Haywood's 
Manual,  521-2,  (act  of  1741.) 

For  hunting  with  dogs,  in  the  woods  even  of  his  master,  the 
slave  is  subjected  to  a  whipping  of  thirty  lashes.  Haywood's 
Manual,  524,  (act  of  1753.) 

A  slave  endeavouring}  to  entice  another  slave  to  run  away, 

of  which  slaves  are  severely  punished)  would  swell  this  branch  of  the  subject 
beyond  its  appropriate  limits. 

*  Such  was  once  the  law  of  Virginia  also.  "In  1705,  two  justices  of  the 
peace  were  authorized,  by  proclamation  to  outlaw  runaways,  who  might  there 
after  be  killed  and  destroyed  by  any  person  whatsoever,  by  such  ways  and 
means  as  he  mig-ht  think  fit,  without  accusation  or  impeachment  of  any  crime 
for  so  doing1."  Speaking-  of  this  law  and  some  others  of  a  kindred  nature, 
Judge  Tucker,  professor  of  law  in  the  university  of  William  and  Mary,  Virgi 
nia,  observes — "  Such  are  the  cruelties  to  which  a  state  of  slavery  gives  birth; 
such  the  horrors  to  which  the  human  mind  is  capable  of  being  reconciled  by 
its  adoption."  And,  again,  says  the  same  respectable  writer — "  In  1772  some 
restraints  were  laid  upon  the  practice  of  outlawing  slaves ;  requiring  that  it 
should  appear  to  the  satisfaction  of  the  justices,  that  the  slaves  were  out-lying 
and  doing  mischief.  These  loose  expressions  of  the  act  left  too  much  in  the  discre 
tion  of  men  not  much  addicted  to  weighing  their  import.  In  1792,  every  thing 
relative  to  the  outlawry  of  slaves  was  expunged  from  our  code,  and  I  trust  will 
never  again  find  a  place  in  it"  See  Appendix  to  Slackstone's  Commentaries,  second 
part,  page  56-7.  How  long  will  it  be  before  such  sentiments  prevail  in  North 
Carolina? 

f  The  original  section  creating  this  crime  was  in  these  words:  "  Every  slave 
who  shall  endeavour  to  delude  or  entice  any  slave  to  run  away  and  leave  this 
province,  every  such  slave  and  slaves,  and  his  and  their  accomplices,  aiders  and 


104 

if  provisions,  &c.  be  prepared  for  the  purpose  of  aiding  in  such 
running  away,  shall  be  punished  with  DEATH.  2  Brevard's 
Digest,  233  fy  244.  And,  a  slave  who  shall  aid  and  abet  the 
slave  so  endeavouring  to  entice  another  slave  to  run  away,  shall 
also  suffer  DEATH.  Ibid. 

If  a  slave  harbour,  conceal  or  entertain  another  slave  being  a 
runaway,  in  South  Carolina  and  Georgia,  he  is  subjected  to  cor 
poral  punishment,  to  any  extent  not  affecting  life  or  limb.  2 
Brevard's  Digest,  237;  Prince's  Digest,  452.  In  Maryland, 
thirty-nine  stripes  is  the  penalty  for  harbouring  one  hour.  Jlct 
0/1748,  chap.  19,  §4. 

A  slave  for  being  on  horseback  without  the  written  permis 
sion  of  his  master,  incurs  twenty-five  lashes,  1  Martin's  Digest, 
622 ;  for  keeping  a  dog,  the  like  punishment,  1  Rev.  Code, 
(Mississippi]  379;  for  killing  a  deer,  though  by  the  command 
of  his  master,  overseer,  &c.  unless  such  command  can  be  proved 
by  a  ticket  in  writing,  twenty  lashes,  2  JSrev.  Dig.  246;  "for 
being  guilty  of  rambling,  riding  or  going  abroad  in  the 

abettors,  shall,  upon  conviction  as  aforesaid,  suffer  death."  SBrevard's  Digest, 
233,  act  of  1740.  After  an  experiment  of  eleven  years'  duration,  the  legisla 
ture  relented  so  far  as  to  declare,  "  That  whereas  by,  &c.  of  the  act  entitled, 
&c.  it  is  (among  other  things  contained)  enacted,  *  That  every  slave  who 
shall  endeavour  to  delude  or  entice  any  slave  to  run  away  and  leave  this  pro 
vince,  shall  upon  conviction  suffer  death,'  which  is  a  punishment  too  great  for 
the  nature  of  the  offence,  as  such  offender  might  afterwards  alter  his  intentions, 
Be  it  therefore  enacted,  That  such  part  of  the  said  paragraph  as  relates  only 
to  slaves  endeavouring  to  delude  or  entice  other  slaves  to  run  away  and  leave 
this  province,  shall  not  operate  or  take  effect,  unless  it  shall  appear  that  such 
slave  (so  endeavouring  to  delude  or  entice  other  slaves  to  run  away  and  leave 
this  province)  shall  have  actually  prepared  provisions,  arms,  ammunition,  horse 
or  horses,  or  any  boat,  canoe  or  other  vessel  whereby  their  intention  shall  be 
manifested."  2  JSrev.  Dig.  244,  act  of  1751.  It  is  hardly  necessary  to  remind 
the  intelligent  reader,  that  the  principle  upon  which  the  act  of  1740  was  found 
ed,  is  retained  in  the  amendment  of  1751.  The  endeavour1  on  the  part  of  a 
slave  to  entice  another  to  run  away,  is,  in  both  laws,  regarded  as  a  crime 
worthy  of  death.  What  shall  constitute  the  evidence  of  this  endeavour,  is  defined 
in  the  amendment,  namely,  "  the  preparing  provisions,  &c.  whereby  the  inten 
tion  sftall  be  manifested."  And  this  is  the  only  melioration  of  a  law,  which  it  is 
acknowledged,  in  the  same  breath,  imposed  a  punishment  too  severe  for  the 
offence ! !  And  such  is  still  the  law,  after  the  lapse  of  three-fourths  of  a  cen 
tury. 


105 

night,  or  riding  horses  in  the  day  time  without  leave,  a 
slave  may  be  whipt,  cropt,  or  branded  on  the  cheek  with  the 
letter  R,  or  otherwise  punished,  not  extending  to  life,  or  so  as 
to  render  him  unfit  for  labour."  <ftct  of  Maryland  of  1751, 
chap.  14,  §  8. 

If  a  slave  beat  the  Patuxent  river,  (which  is  sometimes  done 
for  the  purpose  of  taking  fish)  ten  lashes.  Maryland  Laws,  act 
of  1796,  chap.  32,  §  3.  ^And  if  he  place  a  seine  across  the 
Transquakin  and  Chickwiccomico  creeks,  a  justice  of  the  peace 
may  order  him  to  receive  thirty-nine  lashes.  Ibid,  act  of 1805, 
chap.  31,  §  3. 

In  conclusion  of  this  branch  of  the  present  section,  may  be 
added  a  recent  act  of  assembly  of  the  state  of  Mississippi,  of 
great  cruelty,  relating  to  runaway  slaves.  It  is  entitled  an 
act  to  amend  an  act,  entitled  "  An  act  to  reduce  into  one,  the 
several  acts  concerning  slaves,  free  negroes  and  mulattoes," 
and  may  be  found  among  the  laws  of  the  session  of  1824. 
The  first  section  is  in  these  words:  "  When  any  slave  or  slaves 
shall  be  committed  to  any  jail  in  this  state,  as  a  runaway  or  run 
aways,  it  shall  be  the  duty  of  the  jailer  of  said  county  to  inter 
rogate  him,  her  or  them  as  to  his,  her  or  their  owner  or  owners' 
name  or  names  and  place  of  residence,  and  the  account  thus  re 
ceived,  together  with  a  description  of  the  slave  or  slaves,  the 
jailer  shall  forthwith  transmit  by  mail  to  the  owner  or  owners 
named  by  the  slave;  and  if  the  statement  made  by  said  slave  or 
slaves  shall  prove  to  be  false,  it  shall  be  the  duty  of  the  jailer, 
without  delay,  to  give  the  said  slave  or  each  of  them  twenty-five 
lashes,  well  laid  on,  and  interrogate  him,  her  or  them  anew,  and 
transmit  the  intelligence  obtained,  together  with  a  description  as 
aforesaid,  to  the  owner  or  owners  again  named,  and  whip  as  be 
fore  directed,  if  a  second  false  account  is  given;  and,  so  on,  for 
the  space  of  six  months,  it  shall  be  the  duty  of  the  jailer  alter 
nately  to  interrogate  and  whip  as  aforesaid,  whenever  the  said 
slave  or  slaves  may  give  a  false  account  of  his,  her  or  their 
owner  or  owners'  name  and  place  of  residence." 

To  appreciate  fully  the  cruelty  of  this  law,  it  should  be  no 
ticed,  that  its  entire  administration,  inquisitorial  and  punitive, 
is  confined  to  a  single  person,— the  jailer— ^ho,  from  the  nature 

14 


106 

of  his  office,  must  have  the  slave  wholly  within  his  power;  and 
yet  for  the  abuse  of  this  power,  in  a  case  within  the  meaning  of 
the  act,  he  may  he  regarded  as  altogether  irresponsible  to  any 
one.  Without  any  design  on  the  part  of  the  slave,  either  to 
pervert  or  to  conceal  the  truth,  it  is  highly  probable  that  his 
statement  will,  in  many  instances,  be  false,  and  in  many  more 
appear  to  be  so.  For  the  state  of  Mississippi  is,  as  to  the 
greater  part  of  it,  uncultivated  and  uninhabited;  it  is  divided 
into  but  few  counties;  the  number  of  post  offices  which  have 
been  established  there  is  very  small,  and  the  names  of  the  proper 
post  town  must  be  frequently  unknown  even  to  white  inhabi 
tants,  whose  means  of  information  are  vastly  superior  to  what 
the  slave  possesses.  The  master's  place  of  residence,  which  is 
mentioned  in  the  act.  may  be  very  remote  from  the  post  office, 
and  should  it  be  known  to  the  slave,  would  afford  but  little  as 
sistance  to  the  jailer,  as  to  the  endorsement  of  his  letter  to  the 
master.  As  overseers  are  usually  employed  on  plantations,  it 
will  not  be  thought  strange,  that  the  ignorant  slave  should  not 
be  acquainted  with  his  master's  name,  especially  his  Christian 
name.  Proper  names,  both  of  men  and  places,  are  frequently 
spelled  very  differently  from  what  the  pronunciation  would 
teach;  and  jailers  are  not  ordinarily  selected  for  good  scholar 
ship,  or  extensive  information.  Added  to  the  whole,  it  should 
be  recollected,  that  miscarriages  of  letters,  even  when  carefully 
and  correctly  endorsed,  occur  not  seldom,  from  the  ignorance 
or  inattention  of  post-masters.  Notwithstasding  all  these  con 
siderations,  the  jailer  may,  in  his  discretion,  determine  when 
the  slave's  statement  is  false,  and  having  inflicted  the  legal  mea 
sure  of  flagellation,  may  repeat  the  same  punishment,  again  and 
again,  for  the  space  of  six  months — or,  to  use  the  language  of 
the  act,  so  characteristic  of  that  callousness  to  the  slave's  suffer 
ings,  which  familiarity  with  cruelty  begets — "  and  so  on,  for 
the  spvace  of  six  months,  it  shall  be  the  duty  of  the  jailer,  alter 
nately  to  interrogate  and  whip  as  aforesaid." 

I  come  now  to  the  exemplification  of  the  second  branch  of 
this  chapter,  which  may  be  stated  in  the  following  proposition: 

TlIE    PENAL    CODE    OF    THE    SLAVE-HOLDING    STATED    INFLICTS 


107 

PUNISHMENTS  OP  MUCH  GREATER  SEVERITY  UPON  SLAVES  THAN 
UPON  WHITE  PERSONS  CONVICTED  OP  SIMILAR  OFFENCES. 

In  treating  of  this  proposition,  I  shall,  in  the  first  place,  exhibit 
synopses  of  the  penal  codes  of  the  states  of  Virginia  and  Missis 
sippi,  so  far  as  may  be  necessary  in  order  to  comprise  the  offences 
which  are  punished  by  death  in  those  states.  This  selection  is 
recommended  by  the  considerations,  that  one  of  these  states  is 
an  old,  and  the  other  a  new  state — that  the  codes  of  both  have 
been  recently  revised— ~ and  in  some  measure,  by  their  relative 
geographical  positions.  Virginia  will  be  first  noticed.  In  this 
state,  murder  in  the  first  degree — arson,  at  common  law — wil 
fully  setting  fire  to  a  house  in  a  town,  or  aiding,  abetting,  assist 
ing,  counselling,  hiring  or  commanding  any  person  to  do  the 
same,  are  crimes  severally  punishable  with  death,  whether  the 
offender  be  white  or  black,  bond  or  free.  1  Rev.  Code,  616 
4-  587.* 

The  following  table  will  place  this  subject  in  a  clearer  light; 
the  reader  bearing  in  mind,  that  the  numeral  signs  PREFIXED 
to  the  crimes  named  in  the  first  column  of  this  table,  are  not 
designed  to  convey  the  idea,  that  they  are  severally  EXPONENTS 
of  one  crime  ONLY  ;  but  are  used,  in  connexion  with  similar 
numeral  signs,  occupying  similar  places  in  the  second  and 
third  columns  of  the  table,  merely  as  a  convenient  means  of 
indicating  the  correspondence  of  the  crimes,  and  their  specific 
punishments.  So  far  from  having  the  former  signification,  it 
will  be  found,  that  the  table  comprises  at  least  71  crimes  for 
which  SLAVES  are  CAPITALLY  punished,  though  in  none  of  these 
are  whites  punished  in  a  manner  more  severe  than  imprison 
ment  in  the  penitentiary.  Thus,  No.  3  contains  at  least  FIVE 
crimes;  No.  11,  TWO;  No.  13,  at  least  FOUR;  No.  14,  at  least 
THIRTY;  No.  15,  at  least  FIVE;  No.  16,  at  least  TWELVE. 


*  As  a  general  remark  on  the  subject  of  the  penal  code  of  this  state,  it  may 
be  stated,  that  a  conviction  for  a  felony  does  not  work  a  forfeiture  of  goods, 
1  Rev,  Code,  613, 


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The  penal  code  of  Mississippi,  though  less  sanguinary  than 
that  of  Virginia,  yet,  as  an  illustration  of  inequality,  with  respect 
to  the  punishments  imposed  upon  free  white  persons  and  slaves, 
it  may  be  properly  cited.  The  following  crimes*  are  in  that  state, 
punished  with  death,  whether  the  perpetrators  are  slaves,  free 
negroes,  or  white  persons:  1.  Murder — 2.  Robbery — 3.  Rape — 
4.  Burglary — 5.  Wilfully  burning  a  dwelling  house,  a  store,  a 
cotton  house  or  gin  house,  or  any  other  out  house  or  building, 
adjoining  to  a  dwelling  house  or  store — 6.  Horse  stealing,  second 
offence — 7.  Forgery — 8.  Being  accessary  before  the  fact  to  Rape 

, 9.  Being  accessary  before  the  fact  to  Arson,  (as  before  defined,) 

— 10.  Being  accessary  before  the  fact  to  Robbery — 11.  Being 
accessary  before  the  fact  to  Burglary — 12.  For  rescuing  a  person 
convicted  of  a  capital  offence. 

But  with  respect  to  a  large  catalogue  of  other  offences,  it  will 
be  seen  by  the  subjoined  table,  that  a  wide  difference  is  made, 
according  as  the  offender  is  a  slave,  or  free  white  person. 

•  The  crime  of  High  Treason,  being  inapplicable  to  the  condition  of  a 
slave,  is  purposely  omitted. 


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113 

It  would  enlarge  this  chapter  beyond  its  proper  limits,  to 
furnish  in  extenso,  a  similar  view  of  the  punishment  of  offences, 
in  each  of  the  slave-holding  states.  I  shall  content  myself, 
therefore,  by  indicating  the  difference  which  is  made,  in  the 
remaining  states,  as  to  the  severity  of  the  punishments,  to 
which  slaves  and  white  persons  are  severally  subjected,  in  a 
more  general  manner. 

The  penal  codes  of  Tennessee  and  Missouri,  are,  compared 
with  those  of  the  other  slave-holding  states,  distinguished  for 
mildness,  as  respects  the  punishment  of  slaves.  In  Tennessee, 
the  act  of  November  8,  1819,  chap.  35,  has  reduced  the  number 
of  capital  felonies,  when  perpetrated  by  this  unfortunate  class 
of  persons,  to  Jive.  It  is  in  these  words:  "Murder,  arson, 
burglary,  rape  and  robbery,  shall,  when  committed  by  a  slave 
or  slaves,  be  deemed  capital  offences,  and  be  punished  with 
death,  and  all  other  offences  shall  be  punished  as  before;  Pro 
vided,  that  the  punishment  in  no  case,  shall  extend  to  life 
or  limb,  EXCEPT  IN  THE  CASES  ABOVE  ENUMERATED."  Not 
having  in  my  possession,  any  part  of  the  laws  of  this  state, 
except  the  slave  code,  I  am  not  able  to  say,  for  ho  sv  many  and 
for  what  offences,  whites  suffer  death  there. 

In  Missouri,  capital  offences,  committed  by  slaves,  are  nearly 
as  few  in  number  as  in  Tennessee.  But  six,  are  thus  punished 
— 1,  murder — 2,  arson — 3  and  4,  preparing  or  administering 
medicine,  without  his  or  her  master's  consent,  &c.,  and  when 
it  cannot  be  shown  to  have  been  prepared,  or  administered, 
without  an  evil  intent — 5,  conspiracy  to  rebel,  and  6,  a  conspi 
racy  to  murder  any  person,  in  furtherance  of  such  conspiracy 
to  rebel,  and  by  an  overt  act,  attempting  to  execute  such  con 
spiracy.  1  Missouri  Laws,  312.  Treason  and  murder,  when 
the  offenders  are  whites  are  capital.  Arson,  by  a  white,  is 
punished  with  imprisonment  for  not  less  than  one  year,  nor 
more  than  seven  years.  For  assaulting  his  master,  a  slave,  on 
conviction  before  a  justice,  incurs  but  thirty-nine  stripes,  ibid, 
309 — though  there  can  be  no  doubt,  as  to  the  master's  power, 
to  inflict  as  many  more,  as  he  may  think  fit,  without  the  inter 
position  of  the  civil  authority.  In  general,  it  will  be  seen,  the 
laws  of  this  state,  are  unusually  humane.  Yet,  under  the  fol~ 

15 


114 

lowing  section  of  a  law,  passed  July  4,  1825,  great  cruelty 
may  be  legally  practised:  "  For  all  other  offences,  (except  the 
above  designated  ones,)  they  (slaves,)  shall  be  punished,  at  the 
discretion  of  the  court,  before  whom  the  conviction  shall  be 
had,  but  no  part  of  the  punishment  shall  be  fine  or  imprison 
ment,  but  in  lieu  thereof,  the  court  may  punish  by  stripes  at 
their  discretion"  1  Missouri  Laws,  312-13. 

In  Kentucky,  whites  forfeit  life  for  four  crimes  only,*  viz. 
1,  Murder — 2,  wilfully  burning  the  penitentiary — 3,  being  ac 
cessary  thereto  before  the  fact — 4,  the  carnal  abuse  of  a  female 
child  under  ten  years  of  age.  2  Lift.  #  Swi.  1006-1009. 
Slaves  meet  a  similar  punishment  for  eleven  crimes.  These  are 
rj-l,  Murder — 2,  arson — 3,  rape,  on  a  white  woman — 4,  rob 
bery — 5,  burglary — 6,  conspiracy  to  rebel — 7,  administering 
poison  with  an  intent  to  kill — 8,  manslaughter — 9,  attempting 
to  commit  a  rape  on  a  white  woman — 10,  shooting  at  a  white 
person  with  an  intent  to  kill — 11,  wounding  a  white  person 
with  an  intent  to  kill.  See  2  Lift.  $  Swi.  1160-1-4. 

All  other  offences,  when  perpetrated  by  slaves,  are  punish 
able  with  whipping  only,  not  exceeding  thirty-nine  lashes,  ex 
cept  for  advising  the  murder  of  any  person;  for  this  offence 
one  hundred  lashes  are  authorized  to  be  given,  ibid,  1161-2. 

Capital  felonies  abound  in  South  Carolina.  White  persons 
suffer  death  there  for  twenty -seven  offences;  in  twenty-three  of 
which  the  Benefit  of  Clergy  is  not  allowed.  Slaves  incur  a 
similar  fate  for  thirty-six  offences.  From  most  of  these  also, 
the  Benefit  of  Clergy  has  been  taken  away.  Simple  larceny, 
to  the  value  of  one  dollar  and  seven  cents,  whether  perpetrated 
by  a  white  person  or  by  a  slave,  is  a  capital  felony,  without 
the  benefit  of  clergy!!!  See  James  Digest,  title,  crimes  and 
misdemeanors* 


*  In  this  state,  the  Benefit  of  Clergy  is  taken  away  entirely,  as  to  white 
persons.  2  Litt.  &?  Swi.  985.  Blacks  and  mulattoes,  whether  bond  or  free, 
are  allowed  a  privilege  somewluit  resembling  it,  i.  e.  a  commutation  of  capital 
punishment  for  "  such  corporal  punishment  short  of  life,  as  the  court  may 
direct."  2  Litt.  &f  Sun.  1154. 

f  A  distinction  is  made,  by  express  law,  in  South  Carolina,  between  males 
and  females,  convicted  of  clergyablc  offences.  Both  are  to  be  marked  in  the 


115 

In  Georgia,  exclusively  of  High  Treason,  whites  are  pun 
ished  capitally  for  three  crimes  only.  Slaves,  for  at  least* 
nine.  All  other  offences,  committed  by  a  slave,  either  against 
persons  or  property,  or  against  any  other  slave  or  person  of 
colour,  to  use  the  phraseology  of  the  law,  may  be  punished  at 
the  discretion  of  the  court,  before  whom  such  slave  may  be 
tried, — the  court  keeping  in  view  the  principles  of  humanity 
in  passing  sentence,  and  in  no  case,  extending  the  punishment 
to  life  or  limb.  Prince's  Digest,  461.  Jlct  of  December  \§, 
1816. 

Haywood's  Manual,  which  purports  to  be  a  complete  digest 
of  the  laws  of  North  Carolina,  which  were  in  force  at  the  date 
of  its  publication,  in  1818,  contains  no  general  penal  code.  I 
am,  for  the  most  part,  unable  to  ascertain  from  it,  whether 
crimes  committed  by  whites,  are  at  all  punishable  in  that  state. 
And  in  reference  to  slaves,  with  the  exception  of  offences  al 
ready  noticed,  for  which  whipping  is  commonly  directed; 
some  barbarous  enactments  to  invite  and  sanction  the  murder  of 
this  defenceless  class  of  beings,  together  with  a  few  authorised 
sanguinary  expiations  of  minor  offences,  conclude  all  the  in 
formation  which  is  to  be  derived  from  this  source.  Thus — a 
slave  outlawed  for  running  away,  lurking  in  swamps,  and  do 
ing  mischief,  may  be  lawfully  killed  by  ANY  PERSON.  Hay- 
wood's  Manual,  .521. 


hand,  upon  the  brawn  of  the  left  thumb,  with  a  burning-hot  iron,  having  a 
Roman  M  or  T  upon  it,  according  to  the  nature  of  the  crime.  But,  a  male  is 
discharged  without  further  punishment, — &  female,  may  be  whipped,  placed  in 
the  stocJcs,  or  imprisoned  for  the  space  of  a  year  afterwards,  at  the  discretion  of 
the  court.  James  Digest,  97  &  99. 

*  I  have  used  the  words,  at  least,  in  this  place,  inasmuch  as  arson,  which,  in 
the  enumeration  of  the  nine  offences  I  have  given  for  which  slaves  are  capitally 
punished,  is  ranked  as  but  one  offence,  comprehends,  according  to  the  defini 
tion  in  the  Georgia  Code,  a  considerable  number,  provided  the  offender  be  a 
slave.  The  language  of  the  code  is,  "  arson  is  the  malicious  and  wilful  burn 
ing  of  the  house  or  out  house  of  another."  Prince's  Digest,  351.  An  out 
house,  is  a  term  of  very  loose  and  extensive  import.  For  any  such  burning,  a 
slave  is  put  to  death.  But  it  is  only  for  the  wilful  and  malicious  burning  or 
setting  fire  to,  or  attempting  to  burn  a  house  in  a  city,  town  or  village,  that  * 
white  person  is  similarly  punished,  ibid, 


116 

So  to  kill  a  slave,  if  the  killing  be  done,  by  a  white  person, 
in  an  effort  to  take,  from  the,  slave  any  arms  or  ammunition, 
which  he  is  by  law  prohibited  from  keeping — or,  if  a  run 
away  slave  be  killed  in  the  endeavour  to  apprehend  him — or, 
if  a  slave  shall  happen  to  die  under  correction,  by  order  of  the 
County  Court, — the  homicide  in  each  of  these  cases,  is  justifi 
able.  See  Haywood's  Manual,  522.  For  offering  a  forged 
pass,  &c.  any  corporal  punishment,  not  extending  to  life,  may 
be  inflicted,  ibid,  531. 

[A  slave,  convicted  a  second  time,  of  killing  a  horse,  or  any 
cattle,  or  a  hog,  suffers  death,  ibid,  91.  So,  if  he  misbrand 
or  mismark  any  of  these  animals — death  is  the  penalty,  ibid. 

This  last  offence,  when  committed  by  a  white  person,  is  pun 
ished  by  a  fine  of  ten  pounds,  proclamation  money,  over  and 
above  the  value  of  the  animal  misbranded  or  mismarked.  ibid.*"] 

Of  the  spirit  which  once  breathed  in  Maryland,  against  ne 
groes,  the  reader  will  be  instructed,  by  an  act  passed  in  1729. 
(chap,  iv.)  in  the  following  words.  "  Whereas  several  petit  trea 
sons  and  cruel  and  horrid  murders  have  been  lately  committed 
by  negroes;  which  cruelties  they  were  instigated  to  commit, 
and  hereafter  may  be  instigated  to  commit,  with  the  like  inhu 
manity,  because  they  have  no  sense  of  shame,  or  apprehension 
of  future  rewards  or  punishments;  and  that  the  manner  of  ex 
ecuting  offenders,  prescribed  by  the  laws  of  England,  is  not 
sufficient  to  deter  a  people  from  committing  the  greatest  cruel 
ties,  who  only  consider  the  rigour  and  severity  of  punishment; 
Be  it  enacted,  &c.,  that  when  any  negro  or  other  slave,  shall 
be  convicted  by  confession  or  verdict  of  a  jury,  of  any  petit 
treason  or  murder,  or  wilful  burning  of  dwelling  houses,  it 
shall  and  may  be  lawful  for  the  justices  before  whom  such  con 
viction  shall  be,  to  give  judgment  against  such  negro  or  other 

*  An  act  of  assembly,  passed  in  1822,  chap,  xxvii.  provides,  "that  any  per 
son  who  shall  knowingly,  alter  or  deface  the  mark  or  brand  of  any  other  per 
son's  neat  cattle,  sheep  or  hog1,  or  shall  knowingly  mismark  or  brand  any  un- 
branded  or  unmarked  neat  cattle,  sheep  or  hog,  not  properly  his  own,  with 
an  intent  to  defraud  any  other  person,  such  person  or  persons,  on  conviction, 
in  a  Court  of  Record,  shall  be  liable  to  corporal  punishment,  in  the  same  man 
ner  as  on  conviction  of  petit  larceny. "  The  same  act  repeals  the  laws  in  the 
text,  comprised  within  brackets. 


117 

slave,  to  have  the  right  hand  cut  off,  to  be  hanged  in  the 
usual  manner,  the  head  severed  from  the  body,  the  body  divid 
ed  into  four  quarters,  and  the  head  and  quarters  set  up  in 
the  most  public  places  of  the  county  where  such  fact  was 
committed!!  The  barbarous  provisions  of  this  law,  it  will  be 
seen,  were  not  made  compulsory  with  the  justices  before  whom 
the  conviction  might  take  place,  but  were  entrusted  to  their 
discretion.  And,  as  "  the  declaration  of  rights"  prefixed  to 
the  constitution  of  Maryland,  contains  the  following,  among 
other  just  principles,  "  That  sanguinary  laws  ought  to  be  avoid 
ed,  as  far  as  is  consistent  with  the  safety  of  the  state,  and  no 
law  to  inflict  cruel  and  unusual  pains  and  penalties  ought  to  be 
made,  in  any  case  or  at  any  time  hereafter,"  no  Justice,  I  pre 
sume,  would  venture,  in  the  exercise  of  his  discretion,  to  give 
in  his  sentence,  full  scope  to  the  savage  power  confided  to  him. 
Yet  it  cannot  but  move  our  wonder,  that  the  act  itself  has  not 
been  annulled.  The  last  AUTHORIZED  edition  of  the  laws  of  this 
state,  which  I  have  examined,  comprises  it  among  the  laws  still 
in  force. 

It  is  apparent,  from  the  views  given  in  this  chapter,  that  slaves 
offending  against  the  laws  are  subjected  chiefly  to  two  species  of 
punishment — whipping  and  death.  Cropping  and  the  pillory 
are  seldom  directed,  unless  in  conjunction  with  whipping.  In 
several  of  the  states,  transportation  is  authorized,  upon  certain 
conditions,  as  a  commutation  for  the  sentence  of  death.  See  1 
Virg.  Rev.  Code,  430 ;  Haywood's  Manual,  544 ;  Maryland 
Laws,  act  of  1809,  ch.  138,  §  9,  and  act  of  1819,  ch.  159. 
Putting  in  irons,  and  thus  made  to  labour  for  his  master,  is 
practised  in  Louisiana.  1  Mart.  Dig.  688.  As  a  mode  of  SE 
CURING  the  person  of  a  slave  labouring  under  an  accusation  of 
crime,  previous  to  his  trial,  from  necessity,  imprisonment* 


*  The  following  provision  is  contained  in  a  recent  act  of  the  legislature  of 
Virginia;  "  Whenever  the  master  or  owner  of  any  slave  shall  desire  to  confine 
him  in  the  jail  of  any  county  or  corporation  within  this  commonwealth,  it  shall  be 
lawful  for  any  justice  of  the  peace,  in  such  county  or  corporation,  upon  appli 
cation  of  such  master  or  owner  or  his  agent,  to  grant  a  warrant  to  the  jailer, 
authorizing  him  to  receive  such  slave  into  custody  and  to  confine  him  in  said 
jail,  provided,  such  justice  be  of  opinion  that  such  slave  may  be  so  confined 


118 

is  resorted  to.  But  as  a  punishment  after  conviction,  except 
in  the  state  of  Louisiana,  where  the  laws  have  in  some  mea 
sure  recognised  its  adoption,  it  appears  to  be  utterly  unknown, 
In  an  act  of  assembly  of  this  last  mentioned  state,  juries  convok 
ed  for  the  trial  of  a  slave  on  a  charge  not  capitals  may  direct 
the  slave  to  be  imprisoned  not  exceeding  eight  days.  1  Mar 
tin's  Digest,  688,  act  of  March  19,  1816.  Imprisonment  for 
life  is  mentioned  several  times  in  the  laws  of  the  same  state,  as 
a  known  punishment  for  slaves;  yet  for  what  offences,  and  under 
what  circumstances  it  is  authorized,  I  have  not  been  able  to 
ascertain.  See  ibid.  An  act  of  assembly,  posterior  in  point  of 
time  to  the  publication  of  the  work  just  cited,  vests  the  power 
in  the  governor  and  senate  to  commute  the  punishment  of  death 
into  a  lesser  punishment  in  favour  of  slaves,  upon  the  recom 
mendation  of  the  judge  and  jury  by  whom  the  offender  has  been 
tried,  if  the  circumstances  of  the  case  shall  be  such  as  may  be 
thought  to  entitle  him  to  such  commutation ;  and  among  these 
lesser  punishments,  perpetual  imprisonment  is  named.  *flct  of 
March  5,  1823.  Maryland,  Virginia,  Kentucky  and  Georgia, 
have  introduced  the  system  of  penitentiary  confinement,  as 
means  for  the  reformation  and  punishment  of  criminals.  Yet 
the  first  three*  of  these  states  have  expressly  restricted  the  ap 
plication  of  this  system  to  white  convicts ;  and  the  like  distinc 
tion  is  so  strongly  implied  by  the  law  of  Georgia,  that  I  have 
no  doubt  it  exists  there  also. 

This  exclusion  of  imprisonment  as  a  mode  of  punishment  for 
slaves,  has  led,  it  is  believed,  to  the  multiplication  of  capital 


without  public  inconvenience,"  &c.  The  duration  of  this  confinement  is  made 
to  depend  on  the  master's  will,  unless  the  public  convenience  should  require 
the  slave's  discharge.  Ad  of  Assembly  of  February  25th,  1824,  §  4,  entitled 
"  An  act  concerning-  servants  and  slaves."  A  law  of  Missouri,  nearly  similar  to 
this,  though  less  exceptionable,  I  have  noted  in  a  previous  page.  The  remarks 
there  made  may,  with  equal  appositeness,  be  repeated  here.  See  supra, 
page  43. 

*  In  Maryland,  by  an  act  passed  January  6,  1810,  (act  of  November  session, 
1809,  chap.  138,)  slaves  convicted  of  certain  offences  might  be  sentenced  to 
confinement  in  the  penitentiary.  But,  at  a  subsequent  period,  this  provision 
was  repealed.  Laws  of  Maryland,  of  December  session,  1818,  chap.  197,  §  1. 


offences  as  to  this  class  of  people.  Dismemberment,  as  it  would 
in  general  diminish  the  value  of  the  slave,  and  partakes  so  largely 
of  savage  ferocity,  has  probably  at  no  period  been  much  tole 
rated.  For  a  solitary,  offence,  however,  it  is  authorized  in  Mis 
souri.  1  Missouri  Laws,  312. 

Corporal  punishment,  not  extending  to  life  or  limb,  (which  is 
another  name  for  excessive  whipping,)  though  sanctioned  in 
several  cases,  must  be  open,  in  a  great  degree,  to  the  objections 
which  apply  to  dismemberment.  It  is  presumable,  on  this 
account,  that  it  is  not  frequent  in  practice.  In  general,  there 
fore,  death  has  been  resorted  to,  as  the  only  punishment,  ac 
cording  to  the  sentiments  of  slave-holders,  adapted  to  a  state  of 
slavery,  for  all  offences  except  those  of  a  trivial  nature. 

VII.  SLAVES  ARE  PROSECUTED  AND  TRIED  UPON  CRIMINAL 

ACCUSATIONS  IN  A  MANNER  INCONSISTENT  WITH  THE  RIGHTS 
OF  HUMANITY. 

Trial  by  jury  has  been  frequently  and  justly  extolled  as  the 
palladium  of  civil  liberty.  As  it  existed  in  full  vigour  in  Eng 
land,  when  the  settlement  of  this  country  began,  by  the  princi 
ples  of  colonization  it  was  imported  by  our  ancestors,  as  part  of 
the  laws  and  customs  of  the  mother  country  applicable  to  their 
new  situation.  But  African  slavery  having  originated  in  the 
foulest  iniquity,  it  was  natural  that  it  should  be  sustained  and 
perpetuated  by  consentaneous  means.  Accordingly,  in  but  few, 
if  in  any,  of  the  colonies,  was  trial  by  jury  allowed  to  the  slave. 
And  thus  it  happens,  that  though  the  constitution  of  the  United 
States,  as  well  as  most*  of  the  constitutions  of  the  individual 
members  of  the  confederacy,  secure  to  the  citizen,  impeached  of 
crime,  the  benefit  of  this  institution,  yet,  as  this  has  been  done, 
through  the  medium  of  language,  which  does  not  embrace  the 
case  of  the  slave,  but  has  reference  to  precedent  usage,  he  is  left 
in  this  particular,  in  the  like  condition  of  exclusion,  in  which  he 
stood  under  the  colonial  governments. 

A  considerable  diversity,  however,  obtains  on  this  subject, 
in  the  different  states.  In  Kentucky r,  a  slave  charged  with  an 

*  The  constitution  of  Virginia  contains  no  provision  as  to  trial  by  jury, 


120 

offence  punishable  with  death,  is  entitled  to  the  benefit  as  well 
of  the  grand  as  of  the  petit  jury.  He  is  to  be  "  tried  and  pro 
secuted  in  the  circuit  courts  only,  and  in  the  same  manner,  and 
under  the  same  forms  of  trial,  as  are  by  law  prescribed  in  the 
cases  of  free  persons."  Act  of  Feb.  10,  1819,  2  Litt.  fy  Swi. 
1164 — .In  Georgia,  on  capital  charges,  no  provison  is  made 
for  the  interposition  of  the  grand  jury ;  yet  the  right  of  trial  by 
a  petit  jury,  with  the  privilege  to  the  master  of  challenging 
seven  persons  on  behalf  of  the  slave,  is  expressly  directed  and 
sanctioned.  Prince's  Digest,  459. — By  the  constitution  of  Mis 
sissippi,  it  is  declared,  "  In  the  prosecution  of  slaves  for  crimes, 
no  inquest  by  a  grandly  shall  be  necessary,  but  the  proceed 
ings  in  such  cases  shall  be  regulated  by  law,  except  that  in  capi 
tal  cases,  the  general  assembly  shall  have  no  power  to  deprive 
them  of  an  impartial  trial  by  a  petit  jury." — The  act  of  assem 
bly,  which  has  been  passed  to  carry  into  effect  this  article  of  the 
constitution,  grants  to  the  slave,  on  his  trial  for  a  capital  offence, 
nearly  all  the  advantages  of  a  petit  jury  (except  as  to  witnesses) 
which  are  possessed  by  whites.  Mississippi  Rev.  Code,  382. — 
Article  3,  §  27,  of  the  constitution  of  Missouri,  is  in  these 
words:  "  In  prosecutions  for  crimes,  slaves  shall  not  be  deprived 
of  an  impartial  trial  by  jury ;  and  a  slave  convicted  of  a  capital 
offence  shall  suffer  the  same  degree  of  punishment,  and  no  other, 
that  would  be  inflicted  on  a  free  white  person  for  alike  offence; 
and  courts  of  justice  before  whom  slaves  shall  be  tried,  shall  as 
sign  them  counsel  for  their  defence." — In  the  constitution  of 
Jllabama,  a  provision  is  inserted,  denying  to  the  general  assem 
bly  power  to  deprive  slaves  of  an  impartial  trial  by  a  petit  jury, 
when  prosecuted  for  a  crime  "  of  a  higher  grade  than  petit 
larceny."  See  constitution,  title  slaves,  §  2. — A  declaration 
is  comprised  in  the  bill  of  rights  which  forms  a  part  of  the  con 
stitution  of  Maryland,  (arid  also  in  the  constitutions  of  several 
of  the  other  states,)  of  the  following  tenor:  "  That  in  all  crimi 
nal  prosecutions  every  man  hath  a  right  to  be  informed  of  the 
accusation  against  him ;  to  have  a  copy  of  the  indictment  or 
charge  in  due  time  (if  required)  to  prepare  for  his  defence ;  to 
be  allowed  counsel;  to  be  confronted  with  the  witnesses  against 
him;  to  have  process  for  his  witnesses;  to  examine  the  witnesses 


121 

for  and  against  him,  on  oath ;  and,  to  a  speedy  trial  BY  AN  IM 
PARTIAL  JURY,  without  whose  unanimous  consent  he  ought 
not  be  found  guilty."  Decl.  of  Rights,  19,  and  see  Const,  of 
Alabama,  title  Decl.  of  Rights,  10;  ibid,  of  Mississippi,  tit. 
ibid,  10;  ibid  of  Missouri,  ibid,  9,  fyc.  $*c.     A  citizen  of  one 
of  the  free  states  would  unhesitatingly  construe  this  declaration 
to  be  a  constitutional  guaranty  to  the  slave  of  the  trial  by  jury 
upon  every  criminal  accusation.     In  the  slave-holding  states, 
however,  it  has  no  such  meaning.     By  reference  to  the  consti 
tutions  of  Alabama,  Mississippi  and  Missouri,  as  above  noted, 
the  same  provision  will  be  found  embodied  there,  in  terms  equally 
strong  and  explicit — indeed,  in  nearly  the  same  as  those  con 
tained  in  the  constitution  of  Maryland  as  above  cited.     And 
yet,  quotations  taken  from  the  same  instruments,  and  already 
transcribed  into  this  chapter,  evidence  in  the  clearest  manner, 
that  slaves  are  not  considered  as  embraced  by  such  provision. 
And  in  relation  to  the  state  of  Maryland,  the  following  law  com 
pels  us  to  the  like  conclusion:  "  Whensoever  any  negro,  Indian 
or  mulatto  slave,  shall  hereafter  be  charged  with  any  pilfering 
or  stealing,  or  any  other  crime  or  misdemeanor  whereof  the 
county  court  might  have  cognizance,  it  shall  and  may  be  lawful 
for  any  of  the  justices  of  the  provincial  or  county  courts,  upon 
complaint  made  before  him, to  cause  such  negro,  Indian  or  mulatto 
slave  so  offending  to  be  brought  immediately  before  him  or  any 
other  justice  of  the  peace  for  the  county  where  such  offence  is 
committed,  who,  upon  due  proof  made  against  any  such  negro 
or  (Indian)  or  mulatto  slave  of  any  of  the  crimes  as  aforesaid, 
such  justice  is  hereby  authorized  and  empowered  to  award 
and  cause  to  be  inflicted,  according  to  the  nature  of  the 
crime,  such  punishment  by  whipping  as  he  shall  think  fit,  not 
exceeding  forty  lashes.79  Act  of  1717.  chap.  13,  §  6.     This 
law,  notwithstanding  that  it  abrogates  the  right  of  trial  by  jury 
in  the  case  of  slaves  accused  of  the  offences  enumerated  in  it,  is 
given  as  in  force,  in  an  edition  oi  the  laws  of  the  state,  published 
under  the  express  sanction  at'  the  legislature  in  1799,  (twenty- 
three  years  after  the  adoption  of  the  constitution,)  and  in  other 
more  recent  editions.     But,  wherever  the  life  of  the  slave  is  the 
penalty  of  crime,  no  exception  can  be  taken  lo  the  tribunal 

16 


122 

which  decides  upon  his  fate  in  this  state  ;  trial  by  jury  is  theft 
allowed.   Maryland  Laws,  act  0/1751,  chap.  14. 

The  constitution  of  North  Carolina  guarantees  trial  by  jury 
to  freemen  only.  It  declares,  "  That  no  freeman  shall  be  put 
to  answer  any  criminal  charge,  but  by  indictment,  presentment 
or  impeachment.  That  no  freeman  shall  be  convicted  of  any 
crime,  but  by  the  unanimous  verdict  of  a  jury  of  good  and 
lawful  men,  in  open  court,  as  heretofore  used."  See  Bill  of 
Rights,  §  8  &  9.  A  sense  of  justice  has,  however,  so  far  tri 
umphed  over  the  prejudice  by  which  these  provisions  were  dic 
tated,  as  to  concede  to  slaves  the  privileges  contained  in  the 
subjoined  extract  from  a  law  passed  in  the  year  1793.  "  In  all 
cases  hereafter  happening,  where  any  slave  shall  be  accused  of 
an  offence,  the  punishment  whereof  shall  extend  to  life,  limb 
or  member,  such  slave  shall  be  entitled  to  trial  by  jury,  on  oath, 
consisting  of  twelve  good  and  lawful  men,  owners  of  slaves,  in 
a  summary  way  and  in  open  court  of  the  county  wherein  such 
offence  was  committed."*  Hay  wood's  Manual,  532.  Tennessee^ 
at  the  date  of  this  act,  was  a  component  part  of  North  Carolina, 
and  after  their  separation,  agreeably  to  an  article  in  the  constitu 
tion  of  the  former,  she  continued  in  the  observance  of  the  laws  of 
the  parent  state,  until  they  were  severally  annulled  or  modified 
by  her  own  legislature.  A  slight  modification,  by  her  legis 
lature,  took  place  in  this  law,  by  an  act  passed  October  23, 
1813,  in  which  it  was  declared — "  That  in  the  trial  of  slaves, 
for  all  offences  wrhere  a  jury  is  now  required  by  law,  it  shall  be 
the  duty  of  the  sheriff  to  summon  three  justices  to  preside  on 
the  trial,  and  twelve  housekeepers  being  owners  of  slaves  to 
serve  as  a  jury  on  such  trial,  and  should  the  jury  find  the  slave 
guilty  of  the  offence  charged,  the  said  justices  shall  proceed  to 

*  It  is  with  great  pleasure  \  record  the  following  humane  provision  of  an  act 
passed  in  1822,  by  the  legislature  of  North  Carolina.  "  Hereafter,  on  the  trial 
of  any  slave  or  slaves  for  capital  offences,  if  it  shall  appear  to  the  presiding 
judge,  by  affidavit  or  otherwise,  that  t^ch  slave  or  slaves  cannot  have  a  fair 
trial  in  the  county  wherein  the  offence  is  charged  to  have  been  committed,  it 
shall  and  may  be  lawful  for  such  judge  to  order  the  removal  of  such  cause  to  an 
adjoining  county  for  trial,  notwithstanding  the  -atiaster  or  owner  of  such  slave 
or  slaves  may  neglect  or  refuse  to  make  an  application  to  the  court  for  that 
purpose,"  M  of  Assembly  0/1822,  chap.  2,  §  2, 


pronounce  judgment  and  award  execution  according  to  law." 
Tennessee  Laws  of  1813,  chap.  35.  The  change  in  the  former 
act,  which  is  thus  effected,  is  decisively  unfavourable  to  the 
slave.  For  though  the  trial  by  jury  still  subsists,  yet  it  is  en 
tirely  within  the  power  of  the  sheriff  to  make  the  selection 
both  of  the  justices  and  of  the  jurors — a  power  too  important 
and  too  easily  abused  to  be  delegated  to  any  individual. 

But  trial  by  jury  is  utterly  denied  to  the  slave,  even  in  crimi 
nal  accusations  which  may  affect  his  life,  in  the  states  of 
SOUTH  CAROLINA,  VIRGINIA  and  LOUISIANA;  and  the  tribunal 
which  is  made  to  serve  as  its  substitute,  can  boast  of  none  of  its 
excellences.     This  tribunal  is  usually  styled  "  the  justices  and 
freeholders'  court."     Its  constitution,  and  the  manner  in  which 
its  proceedings  are  conducted,  will  be  best  conveyed  to  the 
reader,  by  a  transcript  of  the  act  of  South  Carolina:  "Ml crimes 
and  offences  committed  by  slaves  in  this  state,  for  which  capital 
punishment  may  lawfully  be  inflicted,  shall  be  heard,  examined, 
tried  and  adjudged,  and  finally  determined  by  any  two  justices 
of  the  peace,  and  any  number  of  freeholders  not  less  than  three 
nor  more  than  five,  in  the  district  where  the  offence  shall  be 
committed,  and  at  a  place  where  they  can  be  most  conveniently 
assembled;  either  of  which  justices,  on  complaint  made  on  infor 
mation  received,  of  any  such  offence  committed  by  a  slave,  shall 
commit  the  offender  to  the  safe  custody  of  some  Constable  of  the 
district,  and  shall  without  delay,  by  warrant  wilder  his  hand  and 
seal,  call  to  his  assistance  and  request  a*y  one  of  the  nearest 
justices  of  the  peace  to  associate  with  hi'1;  and  shall  by  the  same 
warrant,  summon  the  number  of  fr/^holders  aforesaid  from  the 
neighbourhood,  to  assemble  anr1  meet  together  with  the  said 
justices,  at  a  certain  day  and  r&ce,  not  exceeding  six  days  after 
the  apprehending  of  such  *ave  or  slaves,  &c. ;  and  the  justices 
and  freeholders  being  sr  assembled,  shall  cause  the  slave  accused 
or  charged  to  be  brought  before  them,  and  shall  hear  the  accu 
sation  that  shall  te  brought  against  such  slave  or  slaves,  and  his, 
her  or  their  de-^nce,  and  shall  proceed  to  the  examination  of 
witnesses  a«d  other  evidence,  and  finally  hear  and  determine 
the  matter  brought  before  them  in  the  most  summary  and  ex 
peditious  manner;  and  in  case  the  accused  shall  be  convicted  of 


124 

any  crime,  tor  which  by  law,  the  punishment  would  he  death, 
the  said  justices  shall  give  judgment  and  award  such  manner* 
of  death,  as  the  said  justices,  with  the  consent  of  said  free 
holders,  shall  direct,  and  which  they  shall  judge  will  be  most 
effectual  to  deter  others  from  offending  in  the  like  manner." 
James7  Digest,  392-3.  In  Louisiana,  by  an  act  of  assembly  ? 
passed  June  7,  1806,  this  act  of  South  Carolina  was  adopted, 
with  no  other  change,  than  that  a  judge  of  the  court,  may,  if 
present,  act,  instead  of  the  two  justices  of  the  peace.  1  Mar 
tin's  Digest,  642.  The  law,  in  Virginia,  is  substantially 
the  same,  as  to  the  constitution  of  the  court, — the  only  differ 
ence  being,  that  instead  of  the  two  justices  and  three  freehol 
ders,  Jive  justices,  WITHOUT  JURIES,  says  the  act,  shall  be  a 
competent  tribunal  for  trying  slaves,  charged  with  felony.  1 
Rev.  Code,  428.  But  in  Virginia,  in  the  procedure  of  the 
court  on  the  trial  of  a  slave,  he  enjoys  two  important  advan 
tages  which  are  not  yielded  to  him,  either  in  South  Carolina  or 
Louisiana — one,  in  the  allowance  of  counsel,  for  whose  ser 
vices  a  proper  compensation  is  fixed  by  law,  to  be  paid  by  the 
master, — the  other,  in  requiring  unanimity  in  the  justices,  to 
authorize  a  conviction.  1  Virg.  Rev.  Code,  429. 

In  the  best  constituted  courts,  where  skilful  counsel  aid  the 
prisoner  in  h\s  defence,  where  a  jury  of  twelve  men,  imparti 
ally  selected,  against  whom  he  has  no  ground  for  even  the  sus 
picion  of  an  unfavourable  bias,  must  concur  in  their  verdict, 
and  with  the  judge  v$  his  legal  adviser,  (for  such  the  huma 
nity  of  the  common  lav  considers  him,)  it  is  not  to  be  doubted 
that  innocent  persons  have;n  some  instances,  from  the  fallibility 
of  human  judgment,  been  contemned  to  death.  At  times,  when 
the  passions  of  men  are  highij  inflamed,  when  the  offence 
charged  is  loudly  reprobated  by  the  DUblic  voice,  or,  when,  in 
monarchical  governments,  the  strong  brm  of  power,  is  exerted 
to  crush  an  obnoxious  individual,  even  tnd  by  jury,  with  all  its 
guards  against  oppression,  is,  not  seldom,  an  ^adequate  security 

*  Under  the  authority  here  given  to  the  justices  and  freeholders,  "  to  award 
such  manner  of  death,  as  they  may  think  fit,"  horrid  spectacles  arc  sometimes 
exhibited  to  public  gaze.  An  account  of  one  of  these, — i.  e.  the  burning  of  a 
negro  woman  to  death,  may  be  found  in  the  daily  prints  of  1820. 


125 

to  the  accused.  Yet,  a  conviction  in  such  cases,  can  be  obtained 
only  through  the  concurrent  decisions  of  two  distinct  tribunals, 
each  composed  of  at  least  twelve  men,  all  of  whom  act  under  the 
most  solemn  responsibility.  What  chance  of  justice,  then,  has 
an  ignorant  slave,  under  accusation,  for  example,  of  exciting  an 
insurrection,  before  a  tribunal,  chosen  by  his  accuser, — sudden 
ly  convoked,  consisting  of  but  five  persons,  (a  majority  of 
whom,  in  South  Carolina  and  Louisiana,  may  convict,)  without 
any  one  to  countenance  or  advise  him  in  the  conduct  of  his  de 
fence. 

The  Court  of  Justices,  &c.  it  would  appear,  is  to  continue  in 
session  for  the  trial  of  all  slaves  against  whom  complaint  has 
been  made.  I  speak  in  reference  to  the  law  of  South  Carolina 
and  Louisiana,  as  not  being  entirely  certain  on  this  point;  for 
as  respects  Virginia,  there  can  be  no  doubt  that  such  is  the 
case,  inasmuch  as  the  ordinary  justices  of  the  county  courts, 
make  up  this  extraordinary  tribunal  for  the  trial  of  the  slave. 
Those  who  are  to  determine  upon  the  guilt  or  innocence  of  ano- 
other,  accused  of  a  criminal  offence,  ought  if  possible,  to  be  unin 
formed,  except  through  the  medium  of  witnesses  examined  in  the 
particular  trial,  of  the  facts  alleged  against  him,  as  grounds  for 
conviction.  A  permanent  tribunal  in  cases  of  extensive  con 
spiracies — in  insurrections  especially,  cannot  possess  this  essen 
tial  qualification.  One  of  the  many  advantages  which  apper 
tain  to  the  trial  by  jury,  is,  that  each  prisoner  may  if  he  so 
elect,  have  a  separate  body  to  hear  and  decide  between  him  and 
his  accusers. 

The  foregoing  remarks,  have  an  especial  bearing  on  the  con 
stitution  of  the  justices  and  freeholders'  courts.  A  law  made 
for  the  regulation  of  these  courts,  in  the  conduct  of  the  slave's 
trial,  is  also  obnoxious  to  severe  reprehension.  Holding  the 
slave,  (as  indeed  all  persons  who  are  not  white,)  to  be  unwor 
thy  of  belief  in  a  controversy,  which  concerns  even  the  pro 
perty  of  a  white  man,  the  law-makers  of  most  of  the  slave- 
holding  states,  have  nevertheless,  directed  the  testimony  of  the 
slave,  without  oath  or  solemn  affirmation,  to  be  received  for  or 
against  a  fellow  slave,  arrainged  as  the  perpetrator  of  any  cri 
minal  ofience,  and  at  the  same  time,  in  several  of  these  states, 


126 

the  precious  boon  of  freedom  is  never  conferred,  except  for 
what  is  termed,  "  meritorious  services;" — an  import  ant  part 
of  ivhich  is,  the  giving  information  of  crimes  committed  by 
a  slave.  The  admission  of  slave  testimony,  upon  such  condi 
tions,  can  hardly  result  beneficially  to  the  accused.  In  truth, 
it  would  seem  by  the  preamble  of  the  law  of  South  Carolina, 
on  this  head,  that  convictions  only  were  sought  for  by  the  le 
gislature  who  enacted  it.  The  whole  section  reads  thus:  " and 
for  the  preventing  the  concealment  of  crimes  and  offences 
committed  by  slaves,  and  for  the  more  effectual  discovery  and 
bringing  slaves  to  condign  punishment,*  Be  it  enacted,  that 
not  only  the  evidence  of  all  free  Indians,  without  oath,  but  the 
evidence  of  any  slave  without  oath,  shall  be  allowed  and  ad 
mitted  in  all  causes  whatsoever,  for  or  against  another  slave, 
accused  of  any  crime  or  offence  whatsoever,  the  weight  of 
which  evidence  being  seriously  considered,  and  compared  with 
all  other  circumstances  attending  the  case,  shall  be  left  to  the 
conscience  of  the  justices  and  freeholders. "  2  JBrev.  Dig.  232. 
James'  Dig.  394.  In  Virginia,  1  Rev.  Code,  422  and  431;— 
in  North  Carolina  and  Tennessee,  Haywood's  Manual,  522, — 
in  Kentucky,  2  Lift,  fy  Swi.  1150  &  1153-4, — in  Mississippi, 
Rev.  Code,  382,  laws  of  a  similar  character  may  be  found,  though 
the  meaning  is  left  somewhat  to  implication.  In  Georgia  and 
Louisiana,  this  extraordinary  exception  as  to  the  qualification  of 
a  witness,  who  is  a  slave,  is  not  recognised.  In  other  respects, 
the  law  may  be  regarded  as  the  same.  Prince's  Digest,  448. 
1  Martin's  Digest,  642. 

Hitherto,  our  attention  has  been  chiefly  confined  to  the  con 
sideration  of  the  trial  of  the  slave,  when  accused  of  a  capital 
offence.  Another  species  of  punishment  scarcely  less  severe, 
is  sometimes  imposed.  I  allude  "  to  corporal  punishment, 
not  extending  to  life  or  limb,"\  and  is  usually  denominated 

*  In  Virginia,  an  act  was  passed  in  1705,  a  part  of  the  title  of  which  was, 
"for  the  speedy  and  easy  prosecution  of  slaves  committing  capital  crimes.'* 
See  2  Tucker's  Blackstone,  appendix,  59. 

f  This  barbarous  punishment,  is  not  in  terms,  licensed  in  Kentucky.  Yet, 
in  point  of  fact,  I  fear,  it  may  occur  there,  and  yet  challenge  the  sanction  of 
law.  A  very  high  crime,  "  advising  or  consulting  to  commit  murder,"  is  pun 
ishable,  if  ajf'wry  so  direct,  with  one  hundred  lashes!"  2  Litt.  &  Sun.  1161. 


127 

in  the  acts  of  assembly,  but  which  may  be  more  accurately  de 
fined  ;  any  torture  on  the  body  of  a  slave,  which  can  be  prac 
tised  without  producing  death  or  dismemberment.  Cutting 
off  the  ears,  and  the  pillory,  are  in  considerable  favour  with 
the  legislatures  of  Georgia,  North  and  South  Carolina  and  De 
laware.  But  the  punishment  of  universal  prevalence,  and  of 
perpetual  occurrence,  is  whipping.  The  infliction  of  this  pun 
ishment  to  the  extent  of  "  twenty  lashes,  on  the  bare  back,  well 
laid  on,"  is  deemed  in  a  great  variety  of  cases,  of  insufficient 
moment  to  claim  the  intervention  even  of  a  single  magistrate. 
Any  white  person, — a  drunken  patrol, — an  absconding  felon,  or 
a  vagabond  mendicant,  is  supposed  to  possess  discretion  enough 
to  interpret  the  laws,  and  to  wield  the  cowskin  or  cart-whip, 
for  their  infraction; — and  should  death  ensue  by  accident,  while 
the  slave  is  thus  receiving  moderate  correction,  the  constitution 
of  Georgia,  and  the  laws  of  North  Carolina,  kindly  denominate 
the  offence,  justifiable  homicide ! ! 

In  Kentucky,  offences  by  slaves  which  are  not  capital,  are,  with 
the  solitary  exception,  indicated  in  the  last  act,  punished  with 
whipping,  not  exceeding  thirty-nine  lashes.  2'Litt.  4*  Swi. 
1160;  and  one  justice  of  the  peace,  without  the  intervention  of 
a  jury,  may  inquire  into,  and  decide  upon,  the  guilt  or  inno 
cence  of  the  slave  charged  with  the  commission  of  the  same, 
ibid,  1161.  The  like  authority  is  vested  in  a  justice  of  the 
peace,  by  the  laws  of  North  Carolina,  in  cases  where  the  pun 
ishment  cannot  exceed  the  number  of  forty  stripes.  Hay  wood9  s 
Manual,  526-7.  So,  in  Virginia  and  Mississippi,  many  of  the 
breaches  of  the  law,  for  which  the  allotted  expiation  is  whip 
ping,  must  undergo  the  examination  of  a  justice  of  the  peace, 
before  punishment  can  be  lawfully  inflicted.  The  decision  of 
the  justice,  is,  however,  final  and  the  sentence  is  carried  into 
execution  immediately.  Even  the  cutting  off  of  an  ear,  may 
be  directed  by  a  single  magistrate,  in  South  Carolina,  for  an 

In  Georgia  and  South  Carolina,  it  will  be  recollected,  that  terrible  as  this 
punishment  is,  in  one  case,  at  least,  the  slave  incurs  it,  for  what,  in  the  estima 
tion  of  no  rational  being,  can  be  accounted  a  crime,  or  any  thing  resembling 
it,  i.  e.  the  want  of  success  in  a  trial  for  freedom  before  a  judicial  tribunal!,'  See 
supra,  page  77. 


128 

act  which,  if  done  by  a  white  person,  would  not  be  denomiv 
nated  a  crime,  nor  be  punishable  at  all  as  such.  2  Brevard's 
Digest,  227-8.  See  supra,  page  102. 

But  in  most  of  the  slave-holding  states,*  the  ordinary  tribu 
nal  for  the  trial  of  slaves,  charged  with  the  perpetration  of  in 
ferior  crimes,  for  which  the  punishment  of  death  is  not  award 
ed,  is  composed  of  justices  and  freeholders,  or  justices  only.  The 
number  of  these  varies  in  a  small  degree,  in  the  different  states — 
being  in  Virginia,  five  justices.  1  Rev.  Code,  428, — in  Georgia, 
in  North  Carolina  and  in  Tennessee,  three.  Prince's  Dig.  459. 
Hay  wood's  Manual,  522  &  526; — in  Louisiana,  one  justice 
and  three  freeholders;  1  Martin's  Digest,  645-6; — in  South 
Carolina,  one  justice  and  two  freeholders.  James'  Digest,  393; 
— in  Mississippi,  one  justice  and  two  slave-holders.  Miss.  Rev. 
Code,  391.  In  Louisiana,  ONE  HALF  OF  THE  COURT  MAY  CON 
VICT,  ALTHOUGH  THE  OTHER  HALF,  BE  IN  FAVOUR  OF  ACQUIT- 

TAL.t  1  Martin's  Digest,  646; — in  South  Carolina,  a  majority 
(i.  e.  two,  one  of  which,  must  be  the  justice,)  is  necessary  to  a 
conviction,  and,  except  in  Virginia,  where,  as  it  has  been  be 
fore  stated,  unanimity  is  always  required  for  this  purpose;  I  take 
it  to  be  the  proper  construction  of  the  law,  that  a  majority  con 
stitutes  a  quorum,  and  is  competent  to  render  judgment  either 
for  or  against  the  slave. 

*  In  Kentucky,  the  justices  and  freeholders'  court,  is,  I  believe,  unknown. 
The  constitution  of  Missouri,  by  the  extract  from  it,  given  in  this  chapter, 
secures  to  the  slave,  trial  by  jury,  under  every  criminal  accusation.  A  similar 
provision,  exists  in  that  of  Alabama,  for  all  offences  higher  than  petit  larceny. 

f  i.  e.  the  Justice  and  one  freeholder,  may  convict. 


CHAPTER  IV. 

ON  THE  DISSOLUTION  OF  SLAVERY. 

Section  1. — OF  THE  LAWS  FOR  THE  ABOLITION  OF  SLAVERY. 

THE  laws  which  regulate  the  voluntary  emancipation  of  slaves 
by  their  masters,  will  form  the  principal  subject  of  this  chapter. 
But  before  entering  upon  the  consideration  of  these,  I  purpose 
furnishing,  with  but  little  deviation  from  chronological  order, 
some  notice  of  the  measures  by  which  slavery  has  been  abolished 
in  many  of  our  states. 

It  is  well  known,  that  negro  slavery  was  introduced  into  this 
country  by  means  of  the  African  slave  trade,  prosecuted  during 
the  period  of  our  colonial  subjection  to  Great  Britain.  At  the 
time  of  our  separation  from  the  mother  country,  this  evil,  which 
had  taken  deep  root  at  a  much  earlier  date,  prevailed  more  or 
less  in  all  the  British  American  colonies.  It  was  protected  by 
the  laws  of  each  of  these,  and  continued  so  to  be,  even  after  the 
Declaration  of  our  Independence,  and  until  the  first  day  of 
March,  <ft.  D.  1780,  when  the  first  glorious  effort  for  its  aboli 
tion  was  made  by  the  COMMONWEALTH  OF  PENNSYLVANIA. 
That  day  gave  birth  to  an  act  of  assembly,  in  its  consequences 
second  only  to  the  Declaration  of  Independence.  Its  title  dis 
tinctly  proclaimed  its  object,  in  words  few  but  of  large  import: 

"  AN  ACT  FOR  THE  GRADUAL  ABOLITION  OF  SLAVERY." 

The  preamble  to  this  act  contains  such  just  and  generous  sen 
timents,  depicts  with  so  much  force  of  truth  and  language  the 
sorrows  of  slavery,  and  places  the  arguments  for  its  abolition  so 
concisely  and  yet  so  advantageously  before  the  mind,  that  I 
cannot  refuse  myself  the  pleasure  of  transcribing  it  at  length. 
"  When  we  contemplate  our  abhorrence  of  that  condition,  to 
which  the  arms  and  tyranny  of  Great  Britain  were  exerted  to 
reduce  us;  when  we  look  back  on  the  variety  of  dangers  to  which 
we  have  been  exposed,  and  how  miraculously  our  wants  in  many 
instances  have  been  supplied,  and  our  deliverance  wrought,. 

17 


130 

when  even  hope  and  human  fortitude  have  become  unequal  to 
the  conflict,  we  are  unavoidably  led  to  a  serious  and  grateful 
sense  of  the  manifold  blessings  which  we  have  undeservedly  re 
ceived  from  the  hand  of  that  Being,  from  whom  every  good  and 
perfect  gift  cometh.  Impressed  with  these  ideas,  we  conceive 
that  it  is  our  duty,  and  we  rejoice  that  it  is  in  our  power  to  ex 
tend  a  portion  of  that  freedom  to  others  which  hath  been  extended 
to  us,  and  release  from  that  state  of  thraldom  to  which  we  our 
selves  were  tyrannically  doomed,  and  from  which  we  have  now 
every  prospect  of  being  delivered.  It  is  not  for  us  to  inquire 
why,  in  the  creation  of  mankind,  the  inhabitants  of  the  several 
parts  of  the  earth  were  distinguished  by  a  difference  in  feature 
or  complexion.  It  is  sufficient  to  know,  that  all  are  the  work 
of  an  Almighty  hand.  We  find  in  the  distribution  of  the  human 
species,  that  the  most  fertile  as  well  as  the  most  barren  parts  of 
the  earth,  are  inhabited  by  men  of  complexions  different  from 
ours,  and  from  each  other ;  from  whence  we  may  reasonably  as 
well  as  religiously  infer,  that  He,  who  placed  them  in  their  va 
rious  situations,  hath  extended  equally  his  care  and  protection 
to  all,  and  that  it  becometh  not  us  to  counteract  his  mercies. 
We  esteem  it  a  peculiar  blessing  granted  to  us,  that  we  are  en 
abled  this  day  to  add  one  more  step  to  universal  civilization,  by 
removing,  as  much  as  possible,  the  sorrows  of  those  who  have 
lived  in  undeserved  bondage,  and  from  which,  by  the  assumed 
authority*  of  the  kings  of  Great  Britain,  no  effectual  relief  could 
be  obtained.  Weaned  by  a  long  course  of  experience  from  those 
narrow  prejudices  and  partialities  we  had  imbibed,  we  find  our 
hearts  enlarged  with  kindness  and  benevolence  towards  men  of 

*  The  most  signal  effort  here  alluded  to  on  the  part  of  the  General  Assem 
bly  of  Pennsylvania,  when  a  colony,  to  prevent  the  importation  of  slaves, 
was  by  an  act,  which  bears  the  title,  "  An  ad  to  prevent  the  importation  of  ne 
groes  and  Indians  into  this  province,"  passed  June  7,  1712,  but  disallowed  and 
accordingly  repealed  by  Queen  Anne,  on  the  20th  February,  1713.  This  act, 
though  repealed,  may  be  found  on  record,  in  the  office  of  the  Secretary  of  the 
Commonwealth,  at  Harrisburgh,  SooJc  A,  vol.  2,  page  50.  I  am  induced  to  be 
thus  minute  in  this  reference,  since  the  same  act  is  mentioned  in  the  Memoirs 
of  the  Historical  Society  of  Pennsylvania,  vol.  1,  page  370,  to  have  been  lost. 
The  date  there  assigned  to  it  is  1711— an  error  which  has  probably  misled  the 
person  by  whom  the  search  was  made, 


131 

all  conditions  and  nations ;  and  we  conceive  ourselves  at  this 
particular  period  extraordinarily  called  upon,  by  the  blessings 
which  we  have  received,  to  manifest  the  sincerity  of  our  pro 
fession,  and  to  give  a  substantial  proof  of  our  gratitude. 

"  And  whereas  the  condition  of  those  persons  who  have  here 
tofore  been  denominated  negro  and  mulatto  slaves,  has  been 
attended  with  circumstances  which  not  only  deprived  them  of 
the  common  blessings  that  they  were  by  nature  entitled  to,  but 
has  cast  them  into  the  deepest  afflictions  by  an  unnatural  separa 
tion  and  sale  of  husband  and  wife  from  each  other  and  from  their 
children,  an  injury,  the  greatness  of  which  can  only  be  conceived 
by  supposing  that  we  were  in  the  same  unhappy  case.  In  jus 
tice,  therefore,  to  persons  so  unhappily  circumstanced,  and  who, 
having  no  prospect  before  them  whereon  they  may  rest  their 
sorrows  and  their  hopes,  have  no  reasonable  inducement  to  ren 
der  their  service  to  society,  which  they  otherwise  might,  and 
also  in  grateful  commemoration  of  our  own  happy  deliverance 
from  that  state  of  unconditional  submission  to  which  we  were 
doomed  by  the  tyranny  of  Britain,  Be  it  enacted,  That  all 
persons,  as  well  negroes  and  mulattoes  as  others,  who  shall  be 
born  within  this  state  from  and  after  the  passing  of  this  act, 
shall  not  be  deemed  and  considered  as  servants  for  life  or  slaves 5 
and  that  all  servitude  for  life  or  slavery  of  children  in  conse 
quence  of  the  slavery  of  their  mothers,  in  the  case  of  all  children 
born  within  this  state  from  and  after  the  passing  of  this  act  as 
aforesaid,  shall  be  and  hereby  is,  UTTERLY  TAKEN  AWAY,  EX 
TINGUISHED  AND  FOR  EVER  ABOLISHED." 

The  fourth  and  next  section  of  the  act  relates  to  the  children 
of  the  slaves  which,  according  to  the  foregoing  provisions,  would 
be  born  free.  It  will  be  more  properly  introduced  hereafter. 

The  fifth  section  made  it  the  duty  of  the  owner  of  any  slave 
for  life,  &c.  to  cause  him  or  her  to  be  registered*  at  a  place  par- 

*  Many  suits  have  been  brought  under  this  act,  chiefly  in  consequence  of  an 
omission  by  the  master  to  register  his  slaves  in  due  time,  or  from  some  defect 
in  the  statement  furnished  by  the  master  to  the  officer  by  whom  the  registry 
was  directed  to  be  made.  None  of  them,  however,  possess  general  interest, 
nor  are  deemed  of  sufficient  practical  value,  so  much  time  having  elapsed 
since  the  passing  of  the  act,  to  require  particular  reference. 


132 

ticularly  designated,  (the  registry  to  contain  the  name,  age  and 
sex  of  such  slave,  and  the  name,  surname,  occupation  or  profes 
sion  of  the  master,  and  the  name  of  the  county,  &c.  wherein 
the  master  resided, )  on  or  before  the  first  day  of  November  next 
ensuing  the  date  of  this  act,  "  in  order  to  ascertain  and  distin 
guish  the  slaves,  &c.  within  this  state,  who  should  be  such  on 
the  said  first  day  of  November,  from  all  other  persons,"  and 
declared,  that  with  certain  exceptions  mentioned  in  other  sections 
of  the  act,  no  negro  or  mulatto,  then  within  the  state,  should, 
from  and  after  the  said  first  day  of  November,  be  deemed  a  slave, 
&c.  unless  his  or  her  name,  &c.  should  be  registered  as  aforesaid ; 
and  in  the  tenth  section,  the  latter  provision  of  the  .fifth  was  in 
substance  repeated,  the  language  of  which  being  as  follows:  "  No 
man  or  woman  of  any  nation  or  colour,  except  the  negroes  and 
mulattoes  who  shall  be  registered  as  aforesaid,  shall  at  any  time 
hereafter,  be  deemed,  adjudged  or  holden,  within  the  territories 
of  this  commonwealth,  as  slaves  or  servants  for  life,  but  as  free 
men  and  free  women,  except  the  domestic  slaves  attending  upon 
delegates  in  congress  from  the  other  American  states,  foreign 
ministers  and  consuls,  and  persons  passing  through  or  sojourning 
in  this  state  and  not  becoming  resident  therein,  and  seamen 
employed  in  ships  not  belonging  to  any  inhabitant  of  this  state, 
nor  employed  in  any  ship  owned  by  any  such  inhabitant,  pro 
vided,  such  domestic  slaves  be  not  alienated  or  sold  to  any  in 
habitant,  nor  (except  in  the  case  of  members  of  congress,  foreign 
ministers  and  consuls)  retained  in  this  state  longer  than  six 
months"* 

*  It  has  been  decided  in  Pennsylvania,  that  where  the  owner  of  slaves  in 
Maryland,  leased  a  farm,  together  with  his  slaves  to  cultivate  it,  that  the  con 
sent  of  such  lessee  that  one  of  the  slaves  should  be  removed  to  Pennsylvania, 
and  his  being  brought  there,  would  not  entitle  him  to  freedom.  Butler  and 
others  vs.  Delaplaine,  7  Serg.  &  Hawk's  Rep.  378.  Had  the  owner  himself 
consented  to  such  removal,  the  decision  would  have  been  different,  unless  he 
had  been  within  the  excepted  cases  mentioned  in  this  tenth  section.  It  was  also 
decided  at  the  same  time,  that  "  the  sojourning  of  a  master,  a  citizen  of  another 
state,  with  his  slave,  in  the  state  of  Pennsylvania,  would  not  entitle  such  slave 
to  freedom,  unless  there  was  at  some  time  a  continued  retaining  of  the  slave 
here  for  six  months,  except  perhaps,  in  a  case  of  a  fraudulent  removal  back 
wards  and  forwards." 


133 

The  import  of  these  fifth  and  tenth  sections  could  not  have 
been  mistaken,  had  not  the  legislature  inserted  between  the  two, 


A  decision  of  JUDGE  WASHINGTON,  given  at  Philadelphia,  in  1806,  at  the 
October  term  of  the  Circuit  Court  of  tfie  United  States  for  the  third  circuit,  &fc. 
inasmuch  as  it  recognises  the  validity  of  the  tenth  section  of  the  abolition  act  of 
1780,  may  be  here  introduced.  It  is  thus  reported,  in  the  first  volume  of  Wash 
ington's  Circuit  Court  Reports,  page  500  et  seq.  case  of  Sutler  vs.  Hopper.- 
"  This  case  comes  before  the  court  on  a  special  verdict,  the  material  parts  of 
which,  find,  that  the  plaintiff  formerly  lived  in  the  state  of  South  Carolina, 
where,  as  well  as  in  Georgia,  he  had  a  valuable  plantation  which  he  cultivated, 
and  still  cultivates,  by  his  overseers  and  slaves,  and  on  which  he  had,  and  still 
has,  a  furnished  house  and  servants.  That  from  the  year  1794  to  the  present 
time,  with  the  exception  of  an  annual  visit  to  his  plantations  at  the  southward, 
continuing  from  October  in  each  year  till  May  or  June  following,  he  has  kept 
a  dwelling  house  in  the  city  of  Philadelphia,  and  has  resided  in  it,  with  his 
family,  consisting  of  several  children  and  domestic  servants,  and  among  the 
latter  Ben,  the  subject  of  the  present  suit,  who  was  his  property,  as  a  slave,  at 
the  time  of  his  coming  into  this  city,  and  who  continued  with  him,  claimed  as 
such,  until  September  1805,  when  he  was  discharged  from  his  service,  under 
a  habeas  cai'pus  issued  from  the  court  of  common  pleas  of  this  state.  Whilst 
on  his  plantation  in  South  Carolina,  during  these  annual  visits,  the  plaintiff 
kept  house,  always  having  Ben  with  him.  From  the  year  1794,  until  the  4th 
of  January,  1805,  the  plaintiff  represented  the  state  of  South  Carolina  in  con 
gress,  except  for  two  years,  between  1796  and  1800,  when  he  was  a  member 
of  the  legislature  of  that  state.  Upon  these  facts/'  said  Judge  Washington, 
"  the  question  is,  whether  Ben  became  free,  by  virtue  of  a  law  of  this  state, 
(Pennsylvania)  passed  on  the  first  of  March,  1780,"  (the  Judge  then  quoted 
the  tenth  section  of  this  act. ) 

After  disposing  of  an  objection  which  had  been  suggested  by  the  plaintiff's 
counsel  to  the  validity  of  the  law,  by  reason  of  the  ninth  section  of  article  first 
of  the  constitution  of  the  United  States,  and  showing  the  inapplicability  to  the 
present  case  of  the  second  section  of  article  fourth  of  the  same  instrument,  he 
proceeded  in  the  following  words:  "  We  come  then  to  the  consideration  of  this 
law,  (act  of  1780,  tenth  section,)  and  of  the  facts  found  in  the  special  verdict. 
The  plaintiff  claims  an  exemption  from  the  enacting  part  of  the  section  above 
stated,  upon  two  grounds:  first,  as  a  member  of  congres;  and  secondly,  as  a 
sojourner.  The  first  will  not  answer  his  purpose,  because  for  two  years  he 
ceased  to  be  a  member  of  congress,  and  therefore  lost  the  privilege  which  that 
character  might  otherwise  have  conferred  upon  him,  under  the  exception  in 
the  law. 

"  The  next  question  then  is,  can  the  plaintiff  be  considered  as  within  the  other 
exception  of  the  law,  a  sojourner  during  the  period  when  he  ceased  to  be  a 
member  of  congress?  But  the  verdict  precludes  all  inquiry  into  this  point,  by 
finding,  that  the  plaintiff,  from  the  year  1794  to  the  present  time,  has  resided 


184 

under  the  name  of  a  sixth  section,  this  obscure  proviso  to, the 
fifth — "  Provided  always,  That  any  person  in  whom  the  own 
ership  or  right  of  service  of  any  negro,  &c.  shall  be  vested  at 
the  passing  of  this  act,  other  than  such  as  are  herein  before  ex- 
cepted,  his  or  her  heirs,  executors,  administrators  and  assigns, 
&c.  severally  shall  be  liable  to  the  overseers  of  the  poor  of  the 
city,  township,  &c.  to  which  any  such  negro,  &c.  shall  become 
chargeable,  for  such  necessary  expense,  with  costs  of  suits  there 
on,  as  such  overseers  may  be  put  to,  through  the  neglect  of  the 
owner,  master  or  mistress  of  such  negro,  &c.  notwithstanding 
the  name  and  other  descriptions  of  such  negro,  &c.  shall  not  be 
entered  and  recorded  as  aforesaid,  unless  his  or  her  master  or 
owner  shall,  before  such  slave,  &c.  attain  his  or  her  twenty- 
eighth  year,  execute  and  record  in  the  proper  county  a  deed 
or  instrument,  securing  to  such  slave,  &c.  his  or  her  freedom." 
The  introduction  of  the  particle  "  not,"  which  is  italicized, 
in  the  above  quotation,  was  supposed  to  limit  the  generality  and 
unequivocal  meaning  of  the  fifth  and  tenth  sections,  as  applied  to 
the  absolute  emancipation  of  persons  born  as  slaves,  and  who  had 
not  attained  the  age  of  twenty-eight  years  at  the  date  of  the 
act,  and  whose  masters  had  omitted  to  register  them  according  to 
the  direction  of  the  fifth  section ;  and  a  case  of  this  kind  was  ac 
cordingly  brought  before  the  supreme  court  in  the  year  1789. 
"  Negro  Betsey  and  two  others,  Cato  and  Isaac,  who  were  brought 
before  the  court  by  habeas  corpus,  at  the  same  time,  were  born 
before  the  first  day  of  March,  1780,  of  parents  who  were  held 
as  slaves  for  life,  when  these  children  were  born,  but  neither 
the  parents  nor  the  children  had  been  registered  by  the  master 
agreeably  to  the  directions  of  the  fifth  section  of  the  act.  The 
parents  being  more  than  twenty-eight  years  of  age  were  admit 
ted  to  be  free,  but  their  former  master  claimed  to  retain  the 

with  his  family  in  Philadelphia,  except  at  those  times  when  he  visited  his  plan 
tations  in  the  Southern  states.  No  person  is  entitled  to  the  protection  of  the 
exception,  who  is  a  resident  in  the  state,  unless  he  be  a  member  of  congress, 
a  minister  or  consul.  But  the  jury  find  that  the  plaintiff  was  a  resident,  and 
was  not  either  a  member  of  congress,  a  minister  or  consul.  The  conclusion  is 
inevitable,  &c.  I  am,  therefore,  of  opinion,  that  upon  this  verdict  the  law  is 
with  the  defendant." 


135 

children,  not  as  slaves  for  life,  but  as  servants  until  they  should 
severally  attain  the  age  of  twenty-eight  years."  The  case  was 
twice  argued,  yet  ultimately  a  difference  of  opinion  existed  in  the 
court — a  majority  of  the  judges,  however,  decided  against  the  con 
struction  contended  for  on  behalf  of  the  master,  and  thus  was  es 
tablished  the  important  principle,  "  That  in  Pennsylvania,  no  per 
son  born  before  the  first  of  March,  1780,  although  born  a  slave, 
unless  registered  before  the  first  day  of  November  of  that  year, 
could  be  held  by  his  or  her  former  master,  either  as  a  slave  or 
as  a  servant  for  years,  but  was  absolutely  free."  See  the  case, 
Respublica  vs.  Negro  Betsey,  et  al,  1  Dallas9  Reports,  469 
et  seq. 

It  was  deemed  inconsistent  with  the  duty,  which,  as  a  member 
of  the  Union,  Pennsylvania  owed  to  her  sister  states,  to  inter 
fere  with  what  in  those  states  were  regarded  as  rights  of  pro 
perty,  and,  on  this  account,  it  was  expressly  provided,  that 
nothing  contained  in  the  act,  should  give  protection  to  any  slave, 
&c.  absconding*  from  his  or  her  owner,  &c.  residing  in  any 
other  state,  and  coming  into  this  state.  See  1  Smith's  Laws 
of  Pennsylvania,  492  et  seq. 

Such  were  the  leading  provisions  of  the  first  act  which  was 
passed  in  the  United  States  of  America  for  the  abolition  of  sla 
very.  Its  plain  intent  was  to  diminish  gradually  the  number  of 
slaves  amongst  us,  and  eventually  to  destroy  the  institution 
itself.  By  the  positive  terms  of  its  enactments  none  could  there 
after  be  born  as  slaves,  and  from  its  whole  scope  and  spirit  it 

*  Several  very  important  cases  have  arisen  under  this  section  of  the  act. 
One  of  these,  reported  in  the  second  volume  of  Sergeant  &f  Rawle's  Reports t  page 
305  et  seq.  was  of  this  kind:  "  Mary,  a  negro  woman,  the  slave  of  James  Corse, 
of  Maryland,  absconded  from  her  master,  and  came  into  the  state  of  Pennsyl 
vania,  in  which,  after  a  residence  of  about  two  years,  she  became  the  mother 
of  a  female  child.  The  owner  of  the  mother  claimed  the  child  as  his  slave, 
and  having  obtained  possession  of  her  person,  committed  her  to  the  prison  of 
the  city  and  county  of  Philadelphia.  She  was  afterwards  brought  before  the 
Judges  of  the  Supreme  Court,  by  writ  of 'habeas  corpus:  the  sole  question  be 
fore  the  court  was,  whether  birth  in  Pennsylvania  gave  freedom  to  the  child 
of  a  slave  who  had  absconded  from  another  state  before  she  became  pregnant. 
The  court  decided  in  the  affirmative,  that  Eliza  (the  child)  was  not  a  slave, 
and  she  was  accordingly  set  at  liberty. 


136 

was  evidently  opposed  to  the  introduction  of  any  of  this  denomi 
nation  of  persons  from  the  neighbouring  states.  On  the  29th  of 
March,  1788,  it  was,  however,  found  necessary  for  further  legis 
lative  aid  in  the  grand  cause  which  had  been  so  nobly  entered 
upon  in  1780,  and  an  act  was  passed  on  that  day,  which  recites, 
"  for  preventing  many  evils  and  abuses,  arising  from  ill-disposed 
persons  availing  themselves  of  certain  defects  in  the  act  for  the 
gradual  abolition  of  slavery,  passed  on  the  first  day  of  March, 
in  the  year  of  our  LORD  one  thousand  seven  hundred  and  eighty, 
Be  it  enacted,  That  the  exception  contained  in  the  tenth  section 
of  the  act  of  first  March,  1780,  relative  to  domestic  slaves  at 
tending  upon  persons  passing  through  or  sojourning  in  this  state, 
and  not  becoming  resident  therein,  shall  not  be  deemed  or  taken 
to  extend  to  the  slaves  of  such  persons  as  are  inhabitants  of  or 
residents  in  this  state,  or  who  shall  come  here  with  an  intention 
to  settle  and  reside ;  but  all  and  every  slave  and  slaves  who  shall 
be  brought  into  this  state,  by  persons  inhabiting  or  residing 
therein,  or  intending  to  inhabit  or  reside  therein,  shall  be  imme 
diately  considered,  deemed  and  taken  to  be  free,  to  all  intents 
and  purposes."  2  Smith's  Laws  of  Pennsylvania,  443. 

The  abolition  of  slavery  in  Massachusetts,  takes  its  date  one 
day  LATER  than  the  date  of  the  abolition  law  of  Pennsylvania. 
It  was  not  effected  there  by  a  direct  and  intentionally  specific 
act  of  the  legislature,  but  resulted  as  a  consequence  of  the  pri 
mary  article  in  the  bill  of  rights  prefixed  to  the  constitution 
of  the  state, — the  language  of  which  article  is,  "  all  men  are  born 
free  and  equal,  and  have  certain  natural,  essential  and  unalienable 
rights,  among  which  may  be  reckoned  the  right  of  enjoying  and 
defending  their  lives  and  liberties;  that  of  acquiring,  possessing 
and  protecting  property ;  in  fine,  that  of  seeking  and  obtaining 
their  safety  and  happiness." 

This  declaration,  embodied  as  it  was  in  the  constitution,  be 
came  at  once  the  paramount  law  of  the  land, — and  though  so 
totally  repugnant  to  its  spirit  as  well  as  to  its  letter,  was  the 
enslavement  of  one  part  of  the  human  family  by  another,  that, 
as  it  appears  to  me,  but  one  opinion  could,  with  the  least  show 
of  reason,  be  entertained  on  the  subject;  yet,  it  was  not  till  after 
a  solemn  adjudication  of  the  courts,  that  slavery  was  by  this 


137 

means  for  ever  abolished  in  Massachusetts,  that  in  practice  it 
was  considered  so  to  be.  See  Winchenden  vs.  Hat  field,  4  Mas 
sachusetts  Reports,  129. 

Connecticut  appears  to  have  been  the  earliest  among  her  sis 
ter  states  to  follow  the  precedent  of  Pennsylvania.  At  a  special 
session  held  in  January,  1784,  for  the  purpose  of  revising  and 
amending  her  code  of  laws,  the  legislature  agreed  to  incorporate 
this  section:  "No  negro  or  mulatto  child,  that  shall  after  the 
first  day  of  March,  1784,  be  born  within  this  state,  shall  be  held 
in  servitude  longer  than  until  they  arrive  to  the  age  of  twenty- 
five  years,  notwithstanding  the  mother  or  parent  of  such  child 
was  held  in  servitude  at  the  time  of  its  birth,  but  such  child,  at 
the  age  aforesaid,  shall  be  free,"  &c.  See  Statutes  of  Connecti 
cut,  625. 

Probably  about  the  same  time  (the  precise  date  is  not  men 
tioned  in  the  work  which  is  in  my  possession)  the  legislature 
of  Rhode  Island  enacted  a  law  on  the  same  subject,  varying 
in  a  slight  degree  from  that  of  Connecticut,  yet  fixing  the 
same  day  as  the  period  at  which  hereditary  servitude  should 
cease,  as  the  subjoined  extract  will  show:  "  No  person  born 
within  this  state,  on  or  after  the  first  day  of  March,  A.  D.  1784, 
shall  be  deemed  or  considered  a  servant  for  life  or  a  slave,  and 
all  servitude  for  life  or  slavery  of  children  to  be  born  as  afore 
said,  in  consequence  of  the  condition  of  their  mothers,  be  and 
the  same  is  hereby  taken  away,  extinguished  and  for  ever  abo 
lished."1'  Laws  of  Rhode  Island,  443 — "Jin  act  relative,  to 
slaves,  and  their  manumission  and  support,"  §  8. 

The  importation  of  slaves  into  the  state  of  Connecticut  having 
been  prohibited  in  October,  1774,  and  in  Rhode  Island,  it  is 
believed,  at  a  period  equally  remote,  the  entire  abolition  of 
slavery  in  these  states,  as  well  as  in  Pennsylvania,  may  be  now 
considered  as  virtually  accomplished. 

New  Hampshire  having  in  her  constitution,  which  was  finally 
ratified  on  the  eighth  day  of  February,  1792,  inserted  a  provi 
sion  of  similar  import,  and  comprised  indeed  in  nearly  the  same 
words  with  that  already  cited  from  the  constitution  of  Massa 
chusetts,  has  by  implication  also,  abolished  slavery  within  her 
territory. 

18 


138 

The  same  important  doctrine  previously  promulgated,  as  it  is 
well  known  to  have  been,  in  the  memorable  Declaration  of  our 
Independence  on  Great  Britain,  has  served  the  like  glorious 
purpose  in  the  state  of  Vermont.  The  citizens  of  Vermont, 
however,  were  not  content  with  implication  on  such  a  moment 
ous  article  of  their  political  faith,  but  wisely  established,  by 
distinct  enunciation,  the  inference  as  well  as  the  principle 
which  they  so  justly  revered.  I  give  the  whole  article,  not 
withstanding  it  enters  more  into  detail  than  is  altogether  neces 
sary.  "  That  all  men  are  born  equally  free  and  independent, 
and  have  certain  natural,  inherent  and  unalienable  rights,  amongst 
which  are  the  enjoying  and  defending  life  and  liberty;  acquiring, 
possessing  and  protecting  property;  and  pursuing  and  obtaining 
happiness  and  safety ;  THEREFORE,  no  male  person  born  in  this 
country  or  brought  from  over  sea,  ought  to  be  holden  by  law  to 
serve  any  person  as  a  servant,  slave  or  apprentice,  after  he  arrives 
to  the  age  of  twenty-one  years,  nor  female,  in  like  manner,  after 
she  arrives  to  the  age  of  eighteen  years,  unless  they  are  bound 
by  their  own  consent  after  they  arrive  at  such  age,  or  bound  by 
law,  for  the  payment  of  debts,  damages,  fines,  costs  or  the  like." 
See  the  Constitution  of  Vermont,  chap.  1,  art.  1. — The  date 
of  the  constitution  is  July  4th,  1793. 

The  first  act  of  the  state  of  New  York  on  this  subject,  was 
designed  to  work  a  gradual  abolition  of  slavery  in  that  state.  It 
bears  date  the  29th  day  of  March,  1799,  and  provides,  That  all 
children  born  of  slaves  after  the  4th  of  July,  1799,  should  be  held 
by  the  owner  of  the  mothers  of  the  same  only  until  they  should 
respectively  attain  to  the  age  of  twenty-eight  years,  if  males;  and 
if  females,  until  to  the  age  of  twenty-five  years.  Another  act,  of 
similar  import  so  far  as  respects  the  point  under  examination, 
was  passed  JZpril  8,  1801.  But  by  an  act  of  the  Slstof  March, 
one  thousand  eight  hundred  and  seventeen,  a  final  blow  was 
given  in  that  state  to  the  dominion  of  the  slave-holder.  The 
fourth  section  of  this  act  is  as  follows:  "  Every  child  born  of  a 
slave  within  this  state,  after  the  fourth  day  of  July,  in  the  year  of 
our  LORD  one  thousand  seven  hundred  and  ninety-nine,  shall  be 
free,  but  shall  remain  the  servant  of  the  owner  of  his  or  her  mo 
ther,  and  the  executors,  administrators  or  assigns  of  such  ownrr. 


139 

in  the  same  manner  as  if  such  child  had  been  bound  to  service, 
by  the  overseers  of  the  poor,  and  shall  continue  in  such  service, 
if  a  male,  until  the  age  of  twenty-eight  years,  and  if  a  female, 
until  the  age  of  twenty-five  years ;  and  every  child  born  of  a 
slave  within  this  state,  after  the  passing  of  this  act,  shall  remain 
a  servant  as  aforesaid,  until  the  age  of  twenty-one  years,  and  no 
longer."  And  by  the  thirty-second  section  of  the  same  act,  it 
was  declared,  that  "  Every  negro,  mulatto  or  mustee,  within 
this  state,  born  before  the  fourth  day  of  July,  1799,  should,  from 
and  after  the  fourth  day  of 'July ',  1827,  BE  FREE."  This  au 
spicious  day  has  gone  by,  and  there  is,  therefore,  at  this  moment, 
not  a  slave  within  the  wide  spread  territory  of  this  prosperous 
state. 

After  several  ineffectual*  efforts  on  the  part  of  the  advocates 
of  human  rights,  an  act  was  at  length  obtained,  on  the  14th  day 
of  February  1804,  from  the  legislature  of  New  Jersey,  entitled 
"An  act  for  the  gradual  abolition  of  slavery."  It  differs  in  no 
thing  material,  to  the  present  inquiry,  from  the  law  of  Rhode 
Island,  except  that  white  male  children  born  of  slaves,  after 
the  4th  day  of  July  1804,  may  be  retained  as  servants  by  the 
owners  of  their  mothers,  until  the  age  of  twenty-five  years  only, 
and  female  children,  in  like  manner,  until  the  age  of  twenty- 
one  years  only.  See  Revised  Laws  of  New  Jersey,  679. 

The  three  non-slave-holding  states, — Ohio,  Indiana  and  Illi 
nois,  it  is  well  known,  derive  this  important  characteristic  from 
the  "  ordinance  for  the  government  of  the  territory  of  the 
United  States,  north  west  of  the  river  Ohio,"  which  was  rati 
fied  by  Congress  July  13th,  1787.  The  ordinance  recites  and 
adopts  certain  articles,  previously  agreed  upon  by  the  states  of 
Massachusetts,  Connecticut,  New  York,  and  Virginia,  in  the 
compact!  by  which  these  states  ceded  the  North  Western  Ter- 

*  One  of  these  efforts  was  frustrated  by  a  single  vote  in  the  house  of  assem 
bly.  This  was  six  years  before  the  passing  of  the  law  in  the  text. 

f  Notwithstanding  the  solemnity  with  which  this  compact  was  originally  en 
tered  into,  and  afterwards  ratified  by  the  Congress  of  the  United  States,  and 
notwithstanding,  also,  the  plain  and  strong  prohibition  of  slavery  contained 
in  the  sixth  article,  a  violent  endeavour  was  made,  several  years  since,  in  HU- 
noist  to  obtain  a  convention  of  delegates,  in  order  to  expunge  the  prohibition 
inserted  in  the  constitution  of  that  state !! 


140 

ritory  to  the  federal  government.  The  articles  alluded  to  are 
styled,  "Articles  of  compact  between  the  original  states  and 
the  people  and  states  within  the  said  territory,  for  ever  to  re 
main  unalterable,  unless  by  common  consent,"  the  sixth  of 
which  provides,  "  There  shall  be  neither  slavery  nor  involun 
tary  servitude  in  said  territory,  otherwise  than  in  the  punish 
ment  of  crimes  whereof  the  party  shall  have  been  duly  con 
victed." 

The  citizens  of  Ohio  duly  appreciating  the  valuable  guaranty 
thus  conferred  upon  them,  manifested  an  accordant  spirit  with 
the  framers  of  the  ordinance  and  the  parties  to  the  compact,  and 
to  prevent  any  undue  advantage  from  being  obtained  of  colour 
ed  persons,  in  addition  to  the  condition  contained  in  the  ordi 
nance,  saw  fit  to  embody  the  following  excellent  provision  in 
their  constitution — "  Nor  shall  any  indenture  of  any  negro  or 
mulatto,  hereafter  made  and  executed  out  of  this  state,  or  if 
made  in  the  state,  where  the  term  of  service  exceeds  one  year, 
be  of  the  least  validity,  except  those  given  in  the  case  of  appren 
ticeships."  Const,  of  Ohio,  Art.  8,  §  2.  A  provision  in  almost 
the  same  words  is  inserted  in  the  constitution  of  Illinois,  Art. 
6,  §  1,  and  also  in  the  constitution  of  Indiana,  with  the  omis 
sion,  in  the  latter,  of  the  wrords,  "or  if  made  in  the  state." 
Const,  of  Indiana,  Art.  11,  §  7. 

The  state  of  Maine  is  the  only  remaining  non-slave-holding 
state.  As  the  territory  of  which  it  is  composed,  was  a  part  of 
the  state  of  Massachusetts,  until  within  a  few  years  since, 
Maine,  as  a  distinct  sovereignty,  has  never  been  contaminated 
with  slavery.  Her  constitution,  moreover,  adopted  October 
29,  1819,  by  a  convention  chosen  for  the  purpose  by  the  free 
men  within  the  limits  of  her  territory,  and  ratified  by  Con 
gress  on  March  2nd,  1821,  contains  the  same  grand  declaration 
of  unalienable  rights,  which  gave  unconditional  freedom  to  all 
slaves  within  the  parent  state.  See  Const,  of  Maine,  Art.  1,  §  1. 

It  will  be  observed  from  the  notices  here  given,  that  the  abo 
lition  of  slavery  in  the  states  abovementioned,  has  been  of  two 
kinds;  gradual  and  immediate.  In  those  states  in  which  it 
has  been  gradual, — prejudice,  the  effect  of  long  established  prac 
tice, — and  the  spirit  of  gain  which  so  frequently  overpowers  the 


141 

sense  of  justice,  have  usually  made  a  difference  in  the  condition 
of  the  white  population  and  of  such  of  the  coloured  as  have  been 
exempted  from  slavery  for  life,  unfavourable  to  the  rights  and 
happiness  of  the  latter.  Thus  in  Pennsylvania,  by  the  4th  sec 
tion  of  the  abolition  act,  it  is  enacted,  "That  every  negro  or 
mulatto  child  born  within  this  state,  after  the  passing  of  this 
act,  &c.  (who  would,  in  case  this  act  had  not  been  made,  have 
been  born  a  servant  for  years  or  life  or  a  slave,)  shall  be  deemed 
to  be,  and  shall  be,  by  virtue  of  this  act,  the  servant  of  such  per 
son  or  his  or  her  assigns,  who  would,  in  such  case,  have  been  en 
titled  to  the  service  of  such  child,  until  such  child  shall  attain 
unto  the  age  of  twenty-eight  years,  in  the  manner  and  on 
the  conditions  whereon  servants  bound  by  indenture  for  four 
years,  are  or  may  be  retained  and  holden,  &c.  &c."*  So  in 
Connecticut,  according  to  the  section  already  extracted,  the 
same  class  of  persons  might  be  held,  not  as  servants  bound 
by  indenture,  but  as  slaves,  until  they  should  arrive  at  twenty- 
five  years  of  age.  At  the  present  time,  the  law  there  is  some 
what  different,  it  having  been  enacted  in  May,  1797,  that,  "no 
negro  or  mulatto  child  born  within  this  state  after  the  first  day 
of  August,  1797,  shall  be  held  in  servitude  longer  than  until  he 
arrives  to  the  age  of  twenty-one  years,  &c.  but  that  such  child 
at  the  age  aforesaid,  shall  be  free."  Statutes  of  Connecticut, 
626.  Accordant  with  this  latter  section  of  the  laws  of  Connec 
ticut,  is  the  law  of  Rhode  Island.  See  Laws  of  Rhode  Island, 
443,  section  9th  of  "the  act  relative  to  slaves,  #c." 

*  The  want  of  precision  in  the  phraseology  used  in  this  section,  seems  to 
have  induced  an  opinion  with  some  persons,  that  the  servitude  for  twenty-eight 
years  which  is  authorized  by  this  section,  was  not  confined  to  the  immediate, 
offspring  of  those  who  were  slaves  at  the  date  of  the  abolition  act,  but  was  de 
signed  to  be  extended  to  their  DESCENDANTS,  if  duly  registered,  to  the  remotest 
generation.  The  case  of  the  Commonwealth  vs.  Barker,  11  Sergt.  and  Rawk, 
Rep.  360,  presented  this  point  for  the  decison  of  the  court,  but,  as  the  registry 
was  defective,  the  court,  on  the  ground  of  this  defect  alone,  ordered  the  person 
claimed  as  such  servant  to  be  discharged,  declaring,  at  the  same  time,  that  the 
former  was  a  point  of  great  importance,  upon  which  no  opinion  was  intimated. 
But  in  a  later  case,  in  which  the  evaded  point  came  again  before  the  same  court,, 
it  was  decided  that  the  species  of  servitude  alluded  to,  did  not  extend  beyond 
the  immediate  offspring  of  slaves — that  the  children  of  coloured  servants  were 
In  this  particular,  on  the  same  footing  with  the  children  of  white  persons. 


142 

In  New  York,  by  the  acts  of  1799  and  of  1801,  every  child 
born  of  a  slave  within  the  state,  after  the  4th  of  July,  1799,  was 
declared  to  be  free,  but  might  be  retained  by  the  owner  of  the 
mother,  &c.  as  a  servant,  in  the  same  manner  as  if  bound  to 
service  by  the  overseers  of  the  poor;  if  a  male,  until  he  should 
arrive  to  the  age  of  twenty-eight  years  of  age,  and  if  a  female 
until  twenty-Jive  years  of  age.  This  section  was  re-enacted  by 
the  act  of  31st  of  March,  1817,  with  this  important  supplement, 
that  every  such  child  born  after  the  passing  of  the  last  act,  should 
"  remain  a  servant  as  aforesaid  until  the  age  of  twenty-one  years 
and  no  longer."  So  that  the  only  distinction  which  now  exists 
on  this  subject,  in  the  state  of  New  York,  between  the  condi 
tion  of  the  wThite  population  and  the  children  born  of  slaves  since 
the  31st  March,  1817,  is,  that  females  as  well  as  males  may  be 
held  as  servants  till  they  attain  the  age  of  twenty-one  years  in 
stead  of  being  freed  at  the  age  of  eighteen  years. 

The  abolition  act  of  New  Jersey  conforms  to  the  precedent 
of  Pennsylvania  with  respect  to  the  general  principle  here  ad 
verted  to,  yet  humanely  diminishes  the  period  of  servitude  to 
twenty-five  years  in  the  case  of  males,  and  to  twenty-unc  in  the 
case  of  females. 

The  term  gradual  in  its  usual  acceptation  as  applied  to  the 
abolition  of  slavery,  and  as  it  is  to  be  understood  in  the  acts  of 
assembly  before  quoted,  as  also  in  the  remarks  which  I  have 
made  upon  them,  is  restricted  in  its  signification  to  the  extinc 
tion  of  slavery,  by  depriving  it  of  its  hereditary  quality.  A 
gradual  abolition  act  operates  to  prevent  the  enslavement  of 
the  unborn,  while  it  leaves  unaffected  the  condition  of  those  al 
ready  in  being.  Such  were  the  abolition  acts  of  Pennsylvania, 
Connecticut,  Rhode  Island,  New  Jersey,  and  the  first  two  abo 
lition  acts  of  the  state  of  New  York.  But  a  measure  which 
communicates  freedom  to  those  previous  to,  and  at  the  time  of 
its  adoption,  held  as  slaves,  is  here  called  immediate,  whether 
such  freedom  be  conferred  instantaneously  or  whether  it  be 
postponed  to  a  point  of  time  future  in  relation  to  the  date  of  the 
measure.  This  distinction  comprehends  the  last  abolition  act  of 
New  York,  as  also,  the  constitutional  provisions  of  Massachu 
setts,  New  Hampshire  and  Vermont,  and  the  sixth  article  of  the; 


143 

ordinance  of  congress  of  1787,  for  the  government  of  the  terri- 
tory  north-west  of  the  Ohio. 

Slaves  being  considered  property,  it  has  been  said,  an  im 
mediate  abolition  act  like  that  of  New  York,  would  be  uncon 
stitutional,  unless  compensation  should  be  made  to  their  for 
mer  owners  to  the  extent  of  their  value.  But  men,  as  such,  by 
nature,  are  equally  free;  it  is  impossible,  therefore,  that  one  can 
acquire  a  right  over  the  person  of  another  unless  by  his  consent. 
Involuntary  servitude,  unless  inflicted  by  society  as  the  punish 
ment  of  crime,  is  a  usurpation  of  power,  and  it  would  be 
strange  if  society  at  its  pleasure  might  not  put  an  end  to  its 
own  wrong.  On  a  theme  so  hackneyed,  however,  it  is  unneces 
sary  to  waste  argument;  and  happily  in  the  state  of  New  York, 
a  new  constitution  has  been  adopted  since  the  passing  of  the 
abolition  act,  and  the  acts  of  the  legislature  in  force  at  the  adop 
tion  of  the  constitution,  have  been  expressly  declared  in  that 
instrument  to  be  valid.  The  abolition  act,  therefore,  may  be 
regarded  as  a  part  of  the  present  constitution  itself. 

The  abolition  of  slavery  in  Massachusetts  and  New  Hamp 
shire  was  effected  as  has  been  stated,  by  force  of  the  first  arti 
cle  of  the  declaration  of  rights  prefixed  to  their  respective  con 
stitutions.  In  Massachusetts,  an  express  decision  of  the  Supreme 
Court  of  that  state,  has  established  this  constrnction.  No  un 
prejudiced  intelligence  can,  I  believe,  find  fault  with  this  deci 
sion.  The  language  of  the  article  must  be  wrested  from  its  pro 
per  and  obvious  signification  to  give  countenance  to  any  other 
conclusion.  And  yet,  in  Pennsylvania,  the  birth  place  of  ef 
ficient  hostility  to  negro  bondage,  the  highest  judicial  tribunal 
of  the  state,  has  pronounced  as  the  result  of  its  solemn  delibera 
tion  on  a  similar  article  of  her  constitution,  that  slavery  was 
not  inconsistent  with  it*  This  mockery  of  justice  took  place 


*  This  case  is  not  to  be  found  in  the  books  o£  reports.  It  may,  therefore, 
be  proper  to  give  some  further  notice  of  it.  It  was  instituted  in  the  Supreme 
Court,  to  January  term,  1795,  by  a  writ  de  hominc  repkgiando,  and  is  entitled 
on  the  docket,  negro  Flora  vs.  Joseph  Graisberry.  The  defendant  having  died, 
his  executors,  John  Reed  and  James  Glentworth,  were  substituted  agreeably 
to  an  act  of  assembly  providing  for  such  contingencies.  On  the  15th  of  De 
cember,  1797,  the  trial  came  on,  when  a  special  verdict  was  found  by  the  jury, 


144 

so  recently  as  the  twenty-third  day  of  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  two.  It  took  place 
after  the  most  able  and  ample  discussion  by  counsel.  It  was  not 
suddenly  cast  forth  in  the  hurry  of  a  nisi  prius  trial,  and  by  a 
single  judge,  but  the  record  is  stamped  with  the  unanimous 
sanction  of  seven  men  claiming  to  be  in  the  full  possession  of 
intellectual  faculties  of  no  common  order,  and  acting  upon  ma 
ture  consideration.  Such  are  the  deplorable  effects  of  long  fa 
miliarity  with  injustice  and  oppression. 

General  principles  of  political  government,  militating  against 
the  existence  of  slavery,  are  asserted  in  the  constitutions  of  most 
of  the  slave-holding  states ;  yet  care  has  been  taken  to  qualify 
their  bearing  by  some  express  declaration,  importing  that  the 
rights  of  freemen  only  were  designed  to  be  protected.  The 
constitution  of  the  state  of  Delaware,  though  a  slave-holding 
state,  seems  to  have  been  framed  with  somewhat  less  caution  on 
this  subject.  It  sets  forth,  that,  "  Through  Divine  goodness, 
all  men  have,  by  nature,  the  rights  of  worshipping  and  serving 
their  Creator  according  to  the  dictates  of  their  consciences ;  OF 

ENJOYING    AND    DEFENDING   LIFE  AND  LIBERTY  ;   of  acquiring 

and  protecting  reputation  and  property;  and,  in  general,  of 
attaining  objects  suitable  to  their  condition  WITHOUT  INJURY 
BY  ONE  TO  ANOTHER."  Here  we  have  a  charter  of  liberty  of 
sufficient  amplitude.  How  far  it  may  be  considered  as  annihi- 


on  the  suggestion  and  by  the  consent  of  counsel,  and  at  March  term,  1798, 
judgment  was  entered  for  the  defendant,  "  for  the  purpose,"  as  is  stated  in 
the  record,  "  of  an  appeal  to  the  High  Court  of  Errors  and  Appeals,  and  that 
the  justices  of  this  court  may  there  assist  in  hearing  and  determining  it."  On  the 
20th  January,  1802,  the  hearing  took  place  before  the  High  Court  of  Errors  and- 
Appeals.  Jared  Ingersoll,  William  Rawle,  and  William  Lewis,  Esquires,  were  of 
counsel  witli  the  plaintiff,  and  from  the  known  character  of  these  gentlemen, 
it  is  to  be  inferred,  that  during  the  four  days  which  were  occupied  in  the  hear 
ing,  no  argument  which  ingenuity  and  learning  could  supply  was  wanting. 
The  judges  with  a  reserve  more  convenient  to  themselves  than  convincing  to 
their  hearers,  were  content  with  the  brief  declaration,  announced  through  their 
President,  "  that  it  was  their  unanimous  opinion,  slavery  was  not  inconsistent 
with  any  clause  of  the  constitution  of  Pennsylvania;"  in  conformity  with  which, 
judgment  was  entered  on  the  record,  «*  court  unanimously  of  opinion,  that 
negro  Flora  is  a  slave,  and  that  she  is  the  property  of  the  defendants  in  error, 
and  the  judgment  of  the  Supreme  Court  is  affirmed." 


145 

lated  by  what  follows  in  connexion, — "  and  as  these  rights  are 
essential  to  their  welfare,  for  the  due  exercise  thereof,  power  is 
inherent  in  them,  and  therefore,  all  just  authority  in  the  insti 
tutions  of  a  political  society,  is  derived  from  the  people,  and 
established  with  their  consent  to  advance  their  happiness,  and 
they  may,  for  this  end,  as  circumstances  require,  from  time  to 
time,  alter  their  constitution  of  government," — will  depend  very 
much  on  the  moral  sentiments  of  those  who  pass  judgment  upon 
the  question. 

Section  II.  ON  THE  LAWS  REGULATING  THE  EMANCIPATION 
OP  SLAVES. 

Slavery  being  hereditary,  may,  of  consequence,  be  rendered 
perpetual,  if  such  be  the  will  of  the  master  of  the  slave.  From 
a  just  consideration  of  the  rights  of  property,  it  would  seem 
equally  plain,  that  the  master  might,  at  his  pleasure,  relinquish 
his  dominion  over  the  slave.  But  society,  in  our  slave-holding 
states,  has  decreed  otherwise.  Having  degraded  a  rational 
and  immortal  being  into  a  chattel — a  thing  of  bargain  and  sale — 
it  has  been  discovered  that  certain  incidents  result  from  this 
degradation,  which  it  concerns  the  welfare  of  the  community 
vigorously  to  exact  and  preserve.  One  of  these  is,  that  the 
master's  benevolence  to  his  unhappy  bondman,  is  not  to  be  exer- 
cisecl,  by  emancipation,  without  the  consent  of  his  creditor. 
This  is  a  principle  of  law  which  pervades  nearly  every  code  in 
the  slave-holding  states.  In  some  of  these  codes,  express  en 
actment  cannot  be  cited  for  it;  yet  I  think  it  probable,  unless 
with  the  single  exception  of  North  Carolina,*  that  practically  it 
is  made  so  to  operate. 

*  In  North  Carolina,  a  slave,  as  will  be  shown  hereafter,  cannot  be  emanci 
pated  except  for  meritorious  services,  to  be  adjudged  of  and  allowed  by  the 
court.  Haywood's  Manual,  537  (act  0/1796.)  The  act  is  silent  as  to  the  rights 
of  creditors,  and  I  infer;  therefore,  that  the  claims  for  meritoriow  services,  are^ 
deemed  paramount  to  the  rights  of  third  persons,  whether  creditors  or  other j 
wise  interested.  In  South  Carolina,  in  Georgia,  and  in  Alabama,  the  legislai 
ture  only,  by  special  acts,  have  authority  to  emancipate  slaves.  Of  course,  th< 
clause  may  be,  and  no  doubt  always  is,  inserted  to  preserve  these  supposed 
rights. 

19 


146 

In  Virginia  and  Mississippi,  an  emancipated  slave  may  be 
taken  in  execution  to  satisfy  any  debt  contracted  by  the  person 
emancipating  him,  previous  to  such  emancipation.  1  Rev.  ( Vir.) 
Code,  434 ;  Mississippi  Rev.  Code,  386.  In  Kentucky,  the 
act  which  authorizes  emancipation,  and  directs  the  mode  by 
which  it  may  be  effected,  contains  a  saving  of  the  rights  of 
creditors,  &c.  2  Lift.  fy  Swi.  1155,  sect.  27,  act  of  1798. 

By  the  new  civil  code  of  Louisiana,  it  is  declared,  "Any  en 
franchisement  made  in  fraud  of  creditors,  or  of  the  portion  re 
served  by  law  to  forced  heirs,  is  null  and  void;  and  such  fraud 
shall  be  considered  as  PROVED,  when  it  shall  appear  that  at 
the  moment  of  executing  the  enfranchisement,  THE  PERSON 

GRANTING     IT     HAD    NOT    SUFFICIENT     PROPERTY    TO     PAY     HIS 

DEBTS."     Jirt.  190. 

But  in  addition  to  the  obstacles  to  emancipation  which  is  cre 
ated  by  the  saving  in  favour  of  creditors,  a  very  extraordinary 
oneMS  opposed  on  behalf  of  the  widows  of  deceased  slave-hold 
ers.  For  where  a  widow  is  entitled  by  law  to  one-third  of  her 
deceased  husband's  personal  estate,  unless  he  shall  have  left 
sufficient  other  personal  estate,  after  payment  of  his  debts,  to 
satisfy  her  claim  of  one-third,  his  slaves,  though  declared  to  be 
free  by  his  last  will,  shall  nevertheless  not  be  free,  but  shall  be 
held  liable  for  the  third  to  which  the  widow  is  entitled.  1  Vir. 
Rev.  Code,  435;  Mississippi  Rev.  Code,  386;  2  Litt.  fy  Swi. 
(Kentucky}  1246. 

But  it  is  in  the  mode  by  which  emancipation  is  to  be  effected, 
that  the  most  formidable  difficulties  arise.  In  South  Carolina,* 


*  In  South  Carolina,  before  the  passing  of  the  act  of  1820,  here  referred  to, 
the  law  stood  thus:  "  No  emancipation  of  any  slave  shall  be  valid,  except  it 
be  by  deed,  and  according  to  the  regulations  above  described,  (which  regu 
lations  made  it  necessary  for  the  person  intending  to  emancipate  a  slave,  to 
obtam  the  approbation  of  a  justice  of  the  quorum  and  five  freeholders,)  and 
accompanied  by  the  above  certificate,"  (i.  e.  the  certificate  of  the  justice  and 
freeholders.)  2  Srevard's  Digest,  256.  With  such  strictness  was  this  law  con 
strued,  that  where  a  testator  made  a  bequest  of  slaves  to  a  trustee,  with  direc 
tions  to  liberate  them,  it  was  held  by  the  court  of  chancery  to  be  a  void  bequest, 
and  that  therefore  the  slaves  might  be  retained  in  perpetual  servitude.  See 
'he  case  of  Byrnum  vs.  Bostwich,  4  Dessaussurtfs  Chancery  Reports*  266. 


147 

Georgia,  Alabama  and  Mississippi,  it  is  only  by  authority  of  the 
legislature  specially  granted,  that  a  valid  emancipation  can  be 
made.  It  is  not  enough  that  a  penalty  is  imposed  upon  the  be 
nevolence  of  a  master  who  may  permit  his  slave  to  work  for 
himself;  a  slave-owner  must  continue  a  slave-owner,  (unless  he 
dispose  of  his  chattels  by  sale,)  until  he  can  induce  the  legisla 
ture  to  indulge  him  in  the  wish  to  set  the  captives  free.  Prince's 
Digest,  456  (act  of  Dec.  5,  1801);  James*  Digest,  398  (act  of 
1820);  Toulmin's  Digest,  632;  Mississippi  Rev.  Code,  386, 
In  Georgia,  the  attempt  to  set  free  a  slave,  by  any  other 
mode  than  by  an  application  to  the  legislature,  is  visited  with 
severe  penalties,  as  will  appear  from  the  following  act:  "  If  any 
person  or  persons  shall,  after  the  passing  of  this  act,  1801,)  set 
free  any  slave  or  slaves,  in  any  other  manner  and  form  than  the 
one  prescribed  herein,  (i.  e.  by  special  legislative  act,)  he  shall 
forfeit  for  every  such  offence  two  hundred  dollars,  to  be  reco 
vered  by  action  of  debt,  or  indictment,  the  one  half  to  be  applied 
to  the  use  of  the  county  in  which  the  offence  may  have  been 
committed,  the  other  half  to  the  use  of  the  informer,  and  the 
said  slave  or  slaves  so  manumitted  and  set  free,  shall  be  still  to 
all  intents  and  purposes  as  much  in  a  state  of  slavery  as  before 
they  were  manumitted  and  set  free  by  the  party  or  parties  so 
offending."  Prince's  Digest,^!.  Notwithstanding  the  punish 
ment  thus  imposed  for  this  new  crime  which  the  Christian  people 
of  the  republic  of  Georgia  have  seen  fit  to  create,  in  the  nineteenth 
century,  some  refractory  heretic,  it  is  presumed,  must  have  been 
found  within  her  borders,  for  in  the  year  1818,  the  following 
act  was  added  to  her  code:  "All  and  every  will  and  testament, 
deed,  whether  by  way  of  trust  or  otherwise,  contract  or  agree 
ment  or  stipulation,  or  other  instrument  in  writing,  or  by  parole, 
made  and  executed  for  the  purpose  of  effecting  or  endeavouring 
to  effect  the  manumission  of  any  slave  or  slaves,  either  directly 
by  conferring  or  attempting  to  confer  freedom  on  such  slave  or 
slaves,  or  indirectly  or  virtually,  by  allowing  and  securing  or  at 
tempting  to  allow  and  secure  to  such  slave  or  slaves  the  right  or 
privilege  of  working  for  his,  her  or  themselves,  free  from  the 
control  of  the  master  or  owner  of  such  slave  or  slaves,  or  of  en 
joying  the  profits  of  his,  her  or  their  labour  or  skill,  shall  be  and 


148 

the  same  are  hereby  declared  to  be  utterly  null  and  void:  and 
the  person  or  persons  so  making,  &c.  any  such  deed,  &c.  &c. 
and  all  and  every  person  or  persons  concerned  in  giving  or  at- 
attempting  to  give  effect  thereto,  whether  by  accepting  the  trust 
thereby  created  or  attempted  to  be  created,  or  in  any  other  way 
or  manner  whatsoever,  shall  be  severally  liable  to  a  penalty  not 
exceeding  one  thousand  dollars,  to  be  recovered,  &c.  &c.  and 
each  and  every  slave  or  slaves  in  whose  behalf  such  will  or  tes 
tament,  &c.  &c.  shall  have  been  made,  shall  be  liable  to  be 
arrested  by  warrant  under  the  hand  and  seal  of  any  magistrate 
of  this  state,  and  being  thereof  convicted,  &c.  shall  be  liable  to 
be  sold  as  a  slave  or  slaves,  by  public  outcry,  and  the  proceeds 
of  such  sales  shall  be  appropriated,  &c.  &c."  Prince's  Digest, 
466. 

By  an  act  of  the  General  Assembly  of  North  Carolina,  in 
1777,  it  is  enacted,  "That  no  negro  or  mulatto  slave  shall  here 
after  be  set  free,  except  for  meritorious  services  to  be  adjudged 
of  and  allowed  by  the  County  Court,  and  license  first  had  and 
obtained  thereupon:  and  when  any  slave  is  or  shall  be  set  free 
by  his  or  her  master  or  owner,  otherwise  than  is  herein  before 
directed,  it  shall  and  may  be  lawful  for  any  freeholder  in  this 
state  to  apprehend  and  take  up  such  slave  and  deliver  him  or 
her  to  the  sheriff  of  the  county,  who,  upon  receiving  such  slave, 
shall  give  such  freeholder  a  receipt  for  the  same,  and  the  sheriff 
shall  commit  all  such  slaves  to  the  jail  of  the  county,  there  to 
remain  until  the  next  court  to  be  held  for  that  county;  and  the 
court  of  the  county  shall  order  all  such  confined  slaves  to  be  sold, 
during  the  term,  to  the  highest  bidder."  Hay  wood's  Manual,  525. 
The  sheriff  is  directed  five  days  before  the  time  appointed  for  the 
sale  of  the  emancipated  negro,  to  give  notice  in  writing  to  the  per- 
vson  by  whom  the  emancipation  was  made,  to  the  end  that  such  per_ 
son  may,  if  he  thinks  proper,  renew  his  claim  to  the  negro  so 
emancipated  by  him,  on  failure  to  do  which,  the  sale  is  to  be  made 
by  the  sheriff,  and  one  fifth  part  of  the  nett  proceeds  is  to  be 
come  the  property  of  the  freeholder  by  whom  the  apprehension 
tvas  made,  and  the  remaining  four  fifths  are  to  be  paid  into  the 
public  treasury.  Ibid,  525-6,  and  see  act  of  1788,  ibid,  529, 
also  act  of  1796,  ibid,  537. 


149 

The  same  law  obtained  in  Tennessee  till  Nov.  13,  1801,  when 
a  new  act  was  passed,  authorizing  the  court  to  emancipate  slaves 
upon  a  presentation  of  a  petition  for  that  purpose,  with  the 
proviso,  that  "the  reasons  set  forth  in  said  petition,  shall,  in 
the  opinion  of  the  court,  be  consistent  with  the  ,interest"and  po 
licy  of  the  state. "  Tenn.  Laws,  act  of  1801,  chap.  27.  The 
usual,  and,  I  suppose,  necessary  precaution  of  requiring  a  bond 
from  the  emancipator,  to  indemnify  the  public  against  any  charge 
which  might  accrue  for  the  support  of  the  emancipated  slave, 
in  case  he  should  be  disqualified  from  labour  by  sickness  or  the 
infirmities  of  age,  is  exacted  in  this  act. 

Mississippi  has  combined  in  one  act  all  the  obstacles  to  eman 
cipation  which  are  to  be  met  with  in  the  laws  of  the  other  slave- 
holding  states.  Thus,  the  emancipation  must  be  by  an  instru 
ment  in  writing,  a  last  will  or  deed,  &c.  under  seal,  attested 
by  at  least  two  credible  ivitnesses,  or  acknowledged  in  the 
court  of  the  county  or  corporation,  where  the  emancipator  re 
sides,  proof  satisfactory  to  the  General  Assembly  must  be 
adduced  that  the  slave  has  done  some  meritorious  act  for  the 
benefit  of  his  master,  or  rendered  some  distinguished  service 
to  the  state;  all  which  circumstances  are  but  pre-requisites, 
and  are  of  no  efficacy  until  a  special  act  of  assembly  sanctions 
the  emancipation; — to  which  may  be  added,  as  has  been  already 
stated,  a  saving  of  the  rights  of  creditors  and  the  protection  of 
the  widow's  thirds.  Mississippi  Rev.  Code,  385-6,  (act  of 
June  18,  1822.) 

In  Kentucky,  Missouri,  Virginia,  and  Maryland,  greater  fa 
cility  is  afforded  to  emancipation.  The  first  named  of  these 
states,  enacted  in  1798  the  following  law,  which  continues  still 
in  force:  "It  shall  be  lawful  for  any  person  by  his  or  her  last 
will  and  testament,  or  by  any  other  instrument  in  writing, 
under  his  or  her  hand  and  seal,  attested  and  proved  in  the  coun 
ty  court  by  two  witnesses  or  acknowledged  by  the  party  in  the 
court  of  the  county  where  he  or  she  resides,  to  emancipate  or 
set  free  his  or  her  slave  or  slaves,  who  shall  thereupou  be  entire 
ly  and  fully  discharged  from  the]  performance  of  any  contract 
entered  into  during  their  servitude,  and  enjoy  their  full  free 
dom  as  if  they  had  been  born  free.  And  the  said  court  shall 


150 

have  full  power  to  demand  bond  and  sufficient  security  of  the 
emancipator,  his  or  her  executors,  &c.  for  the  maintenance  of 
any  slave  or  slaves  that  may  be  aged  or  infirm  either  of  body  or 
mind,  to  prevent  him,  her,  or  them  becoming  chargeable  to  the 
county ;  and  every  slave  so  emancipated  shall  have  a  certificate 
of  his  freedom  from  the  clerk  of  such  court  on  parchment,  with 
the  county  seal  affixed  thereto,  Sue.  saving,  however,  the  rights 
of  creditors,  &c.  &c."  2  Litt.  fy  Swi.  1155.  And  in  1800,  in 
consequence  of  a  humane  law  particularly  noticed  in  a  previous 
page*  of  this  sketch,  by  which  slaves  were  constituted  real  estate, 
and  therefore,  so  far  as  concerns  the  law  of  descents,  not  sub 
ject  to  disposition  by  the  will  of  a  minor,  or  by  a  deed  exe 
cuted  by  him,  an  act  was  passed  to  remove  this  impediment, 
declaring,  "That  any  person  of  the  age  of  eighteen  years,  being 
possessed  of  or  having  a  right  to  any  slave  or  slaves,  may,  by 
his  last  will  and  testament,  or  by  an  instrument  in  writing, 
emancipate  such  slave  or  slaves.'7  Ibid,  1247. 

The  law  of  Missouri  on  this  subject  bears  so  close  an  analogy 
to  the  law  of  Kentucky  of  1798,  as  not  to  call  for  a  particular  re 
cital.  See  2  Missouri  Laws,  744. 

In  Virginia,  the  law  of  emancipation  has  undergone  many 
changes  since  the  year  1699,  when  the  first  legislative  interposi- 
sition  happened.  By  an  act  of  that  year,  the  emancipation  of 
any  negro  or  mulatto  slave,  was  rendered  nugatory  unless  the 
emancipator  should  send  his  freedman  out  of  the  country 
within  six  months  from  the  time  of  his  emancipation;  and  in 
default  of  so  doing,  the  church  wardens  were  authorized  to  ap 
prehend  and  sell  him.  3  Henning's  Statutes,  87.  Another 
act  was  passed  in  1723,  forbidding  emancipation,  except  for  me 
ritorious  services  to  be  adjudged  of  by  the  governor  and  council. 
4  ibid,  132.  This  latter  act  was  superseded  in  1782,  by  the 
introduction  of  one  nearly  similar,  which  is  now  in  force  in 
this  state,  and  which  in  many  essential  points  has  been  closely 
followed  in  the  law  of  Kentucky  of  1798,  as  above  transcribed. 
See  1  Rev.  Code,  ( Virginia,  433-4. )  In  one  rospect,  and  that 
too  of  a  most  important  character,  the  law  of  Virginia  differs 
from  the  law  of  Kentucky.  I  allude  to  the  inhuman  provision 

*  See  supra,  note  f  p.  23, 


151 

adverted  to  in  the  first  part  of  this  sketch,  by  which  an  emanci 
pated  negro,  being  more  than  twenty-one  years  of  age,  who  shall 
continue  within  the  state  more  than  twelve  months  after  his 
right  to  freedom  shall  have  accrued,  may  be  again  reduced  to 
slavery!!  Ibid,  436.* 

The  existing  law  of  Marylaud  on  this  subject,  takes  its  date 
from  the  act  of  1796,  chap.  67; — the  29th  section  of  which  is  in 
these  words:  "Where  any  person  or  persons  possessed  of  any 
slave  or  slaves  within  this  state,  who  are  or  shall  be  of  healthy 
constitutions ,  and  sound  in  mind  and  body,  capable  by  labour 
to  procure  to  him  or  them  sufficient  food  and  raiment,  with  the 
requisite  necessaries  of  life,  and  not  exceeding  forty-five  years 
of  age,  andt  such  person  or  persons  possessing  such  slave  or 
slaves  as  aforesaid,  may  by  writing,  under  his,  her  or  their  hand 
and  seal,  evidenced  by  two  good  and  sufficient  witnesses  at  least, 
grant  to  such  slave  or  slaves,  his,  her  or  their  freedom;  and  any 
deed  or  writing  whereby  freedom  shall  be  given  or  granted  to 
any  such  slave,  which  shall  be  intended  to  take  place  in  future,! 
shall  be  good  to  all  intents,  constructions,  and  purposes  whatso 
ever,  from  the  time  that  such  freedom  or  manumission  is  intend- 

*  See  supra,  page  18. 

f  The  word  and,  though  in  the  law,  should  be  striken  out. 

t.  In  a  case  of  this  kind,  where  a  future  point  of  time  is  fixed  at  which  the 
slave  is  to  be  free,  it  is  plain,  he  ought  to  be  regarded  not  as  an  absolute  slave, 
but  merely  bound  to  a  servitude  for  years.  According  to  the  maxim,  that  the 
condition  of  the  issue  depends  upon  the  condition  of  the  mother,  it  would, 
therefore,  follow,  that  the  issue  of  female  slaves  so  circumstanced,  and  born 
during  the  period  of  their  mother's  servitude  for  years,  should  not  be  considered 
slaves  for  life.  Whether  such  issue  should  be  held  as  slaves  for  life,  or  should 
be  regarded  as  free,  seems  not  to  have  been  well  settled  by  the  courts.  To 
remove  all  doubt  on  this  subject,  as  on  some  other  nearly  similar  cases,  "  that 
from  and  after  the  first  day  of  February,  1810,  if  any  negro  or  mulatto  female 
slave,  by  testament,  or  last  will,  or  deed  of  manumission,  shall  be  declared  to 
be  free  after  any  given  period  of  service,  or  at  any  stipulated  age,  or  upon  the 
performance  of  any  condition,  or  on  the  event  of  any  contingency,  it  shall  be 
lawful  for  the  person  making  such  last  will,  &c.  8cc.  to  fix  and  determine  in 
the  same,  the  state  and  condition  of  the  issue  that  may  be  born  of  such  negro 
or  mulatto  female  slave  during  their  period  of  service."  So  far  the  act  is  ju 
dicious,  but  in  the  next  section,  it  is  provided,  that  in  the  event,  that,  the  tes 
tator,  &c.  shall  not  determine  the  condition  of  the  issue  so  born,  they  shall  be 
esteemed  slaves  for  life.'.'.'  Maryland  Laws,  net  of  Nov.  1809,  ch.  171. 


152 

ed  to  commence  by  the  said  deed  or  writing,  so  that  such  deed 
and  writing  be  not  in  prejudice  of  creditors,  and  that  such  slave, 
at  the  time  such  freedom  or  manumission  shall  take  place  or  com 
mence,  be  not  above  the  age  aforesaid,  and  be  able  to  work  and 
gain  a  sufficient  livelihood  and  maintenance,  according  to  the 
true  intent  and  meaning  of  this  act,  which  instrument  of  writing 
shall  be  acknowledged  before  one  justice  of  the  peace  of  the 
county  wherein  the  person  or  persons  so  granting  such  freedom 
shall  reside,  which  justice  shall  endorse  on  the  back  of  such  in 
strument  the  time  of  the  acknowledgment,  and  the  party  mak 
ing  the  same,  which  he  or  they,  or  the  parties  concerned,  shall 
cause  to  be  entered  among  the  records  of  the  county  court,  where 
the  person  or  persons  granting'  such  freedom  shall  reside,  within 
six  months  after  the  date  of  such  instrument  of  writing,  and  the 
clerk  of  the  respective  county  courts  within  the  state,  shall  im 
mediately  upon  the  receipt  of  such  instrument,  endorse  the  time 
of  his  receiving  the  same,  and  shall  well  and  truly  enrol  such 
deed  or  instrument  in  a  good  and  sufficient  book,  in  folio,  to  be 
regularly  alphabeted  in  the  names  of  both  parties,  and  to  remain 
in  the  custody  of  the  said  clerk  for  the  time  being,  among  the 
records  of  the  respective  county  courts;  and  that  the  said  clerk 
shall  on  the  back  of  every  such  instrument,  in  a  full,  legible 
hand,  make  an  endorsement  of  such  enrolment,  and  also  of  the 
folio  of  the  book,  in  which  the  same  shall  be  enrolled,  and  to 
such  endorsement  set  his  hand,  the  person  or  persons  requiring 
such  entry  paying  the  usual  and  legal  fees  for  the  same."  Eman 
cipation  is  also  authorized  by  the  same  act,  to  be  made  by  last 
will  and  testament,  subject  to  the  same  restrictions  which  are 
imposed  in  case  the  emancipation  is  effected  by  deed,  &c.  agree 
ably  to  the  above  section.  Ibid,  §  13.* 

The  state  of  Louisiana,  directs  emancipation  to  be  made  in  the 

*  In  this  state,  a  slave  may  be  manumitted  by  implication  contained  in  a  last 
will  and  testament.  As  by  a  devise  of  real,  or  a  bequest  of  personal  property 
to  a  slave  by  his  owner.  See  Hall  vs.  Mullin,  5  Harris  &  Johnson's  Meports,  190. 
In  North  and  South  Carolina,  it  will  be  recollected,  such  a  devise  or  bequest, 
so  far  from  entitling  the  slave  to  freedom,  is  held  to  be  utterly  void.  The  de 
cision  in  Maryland  is,  however,  in  conformity  with  the  law  of  villanage,  as  well 
as  to  the  civil  law.  See  Coke  IMt,  tit.  ViUunage,  §  205. 


153 

manner  set  forth  in  the  following  Articles  of  her  new  civil  code: 
"a  master  may  manumit  his  slave  in  this  state,  either  hy  an  act, 
inter  vivos,  or  by  a  disposition  made  in  prospect  of  death,  pro 
vided  such  manumission  be  made  with  the  forms  and  under  the 
conditions  prescribed  by  law;  but  an  enfranchisement,  when 
made  by  a  last  will,  must  be  express  and  formal,  and  shall  not 
be  implied  by  any  other  circumstances  of  the  testament,  such  as 
a  legacy,  an  institution  of  heir,  testamentary  executorship,  or 
other  dispositions  of  this  nature,  which  in  such  case  shall  be  con 
sidered  as  if  they  had  not  been  made."  Jirt.  184.  The  manner 
to  be  observed  by  the  emancipator,  (when  the  emancipation  is 
not  by  a  last  will,)  is  thus  delineated:  "  The  master  who  wishes 
to  emancipate  his  slave,  is  bound  to  make  a  declaration  of  his 
intention  to  the  judge  of  the  parish  where  he  resides;  the  judge 
must  order  notice  of  it  to  be  published  during  forty  days  by  ad 
vertisement  posted  at  the  door  of  the  court  house,  and  if  at  the 
expiration  of  this  delay,  no  opposition  be  made,  he  shall  author 
ize  the  master  to  pass  the  act  of  emancipation."  *ftrt.  187.  The 
general  powers  thus  conferred,  are  subject  nevertheless,  to 
these  limitations:  "No  one  can  emancipate  his  slave  unless  the 
slave  has  attained  the  age  of  thirty  years,*  and  has  behaved 
well  at  least  for  four  years  preceding  his  emancipation;"  Art. 
185,  except  "  a  slave  who  has  saved  the  life  of  his  master,  his 
master's  wife  or  one  of  his  children,"  for  such  a  one  "  may 
be  emancipated  at  any  age."  Art.  186. 

*  The  bearing  of  this  law,  has  given  rise  to  a  private  act  of  the  assembly  of 
Louisiana,  which,  to  one  accustomed  to  consider  freedom  as  among  the  impre 
scriptible  rights  of  rational  creatures,  may  seem  inexplicable.  The  act  alluded 
to,  is  entitled,  t(  an  act  to  authorize  the  manumission  of  certain  slaves,"  and 
contains  the  following  recital  and  enactment.  "  Whereas  Maria  Martha,  a  free 
woman  of  colour,  of  the  parish  of  West  Baton  Rouge,  has  presented  a  petition 
to  the  legislature,  praying  to  be  authorized  to  manumit  two  of  her  children,  one 
named  Terence,  of  twenty-six  years  of  age,  and  the  other  Valery,  of  twenty-four 
years  of  age,  both  being  her  own  property,  and  begotten  whilst  the  said  Maria 
Martha  was  in  the  bonds  of  slavery;  and  whereas,  in  conformity  of  the  existing 
laws  of  this  state,  slaves  cannot  be  manumitted  until  they  have  attained  a 
certain  age,  therefore,  be  it  enacted,  &c.  that  the  said  Maria  Martha,  &c,  be 
and  she  is  hereby  authorized  to  manumit  her  two  children,  8cc.  &c."  See  acts 
of  assembly  of  Louisiana  in  the  year  1823,  page  36. 

20 


154 

While  treating  on  the  subject  of  emancipation,  with  reference 
to  the  laws  of  Louisiana,  it  is  due  to  the  framers  of  the  new  civil 
code,  as  well  as  to  the  legislature  and  people  by  whom  it  has 
been  adopted,  to  notice  distinctly  several  provisions  in  this  code, 
which  evidence  greater  benevolence  to  the  slave  than  is  usually 
exhibited  in  slave-holding  countries.  Thus,  to  meet  a  case 
which  may  frequently  occur,  it  is  an  article  of  the  code,  that 
"  the  child  born  of  a  woman  after  she  has  acquired  the  right  of 
being  free  at  a.  future  time,  follows  the  condition  of  the  mother, 
and  becomes  free  AT  THE  TIME  FIXED  for  her  enfranchisement) 
even  though  the  mother  should  die  before  that  time."  *ftrt. 
196.  Again,  "The  slave  who  has  acquired  the  right  of  being 
free  at  a  future  time,  is,  from  that  time,  (i.  e.  the  period  when 
the  right  is  acquired,)  capable  of  receiving  by  testament  or  do 
nation.  Property  given  or  devised  to  him,  must  be  preserved 
for  him,  in  order  to  be  delivered  to  him  in  kind,  when  his  eman 
cipation  shall  take  place.  In  the  mean  time,  it  must  be  admi 
nistered  by  a  curator."  J2rt.  193. 


APPENDIX. 


OP  THE  LAWS  OF  THE  UNITED  STATES  RELATING  TO  SLAVERY. 

CHAPTER   I. 

ON  THE  APPORTIONMENT  OF  REPRESENTATIVES  TO  CONGRESS,  &C. 

THE  introduction  of  negro  slavery  into  this  country  was,  as  it 
has  been  already  stated,  a  part  of  the  colonial  policy  of  Great 
Britain.  It  has  been  also  stated,  that  long  before,  and  at  the 
era  of  our  independence,  it  existed  to  some  extent,  in  each  of 
the  original  states  of  the  Union.  It  was  an  institution,  the  evils 
of  which,  at  this  latter  period,  in  particular,  were  severely  felt, 
while  its  incompatibility  with  the  principles  of  a  republican 
government  was  too  palpable  not  to  be  generally  perceived  and 
acknowledged.  Prevailing,  however,  as  was  the  case,  in  some 
states  much  more  than  in  others,  it  was  the  dictate  of  sound 
policy,  on  the  part  of  the  FIRST  Congress,  to  leave  the  whole 
subject  unaffected  by  any  national  measure.  Accordingly,  when 
the  original  draught  of  the  Declaration  of  Independence  was 
presented  to  that  body,  a  portion  of  this  instrument,  which 
reprobated  in  strong  language  the  conduct  of  the  mother  country 
in  relation  to  the  slave  population,  was  entirely  stricken  out.  And 
afterwards,  in  1778,  when  the  articles  of  confederation  between 
the  several  states  were  adopted,  the  topic  of  slavery  was  again 
carefully  excluded.  But  when  the  perils  of  the  revolutionary 
conflict  were  over,  and  peace  invited  the  exercise  of  patriotism, 


156 

philanthropy  and  religion,  in  the  formation  of  a  more  stable 
and  more  perfect  system  of  government,  by  which  were  to  be 
reconciled  the  jarring  elements  incident  to  a  wide-spread  coun 
try,  peopled  by  inhabitants  whose  education,  whose  interests 
and  whose  religious  creeds  were  different,  the  consideration  of 
slavery  was  forced  upon  the  convention.  Politically  speaking, 
a  majority  of  the  states  would  have  been  benefited  had  the  same 
caution  been  observed  with  respect  to  the  Constitution,  which 
had  been  pursued  in  reference  to  the  Declaration  of  Indepen 
dence  and  the  Articles  of  Confederation.  The  apportionment 
of  representatives  among  the  several  states^ was,  however,  a  sub 
ject  of  such  prominence,  as  to  claim  the  earliest  attention  of  the 
convention.  In  an  evil  hour,  the  important  advantage  was  con 
ceded  to  the  slave-holding  states  of  including  within  the  enume 
ration  of  inhabitants  by  which  the  ratio  of  representation  was  to 
be  ascertained,  three-fifths  of  those  who  were  held  in  slavery. 
For  the  surrender  of  right,  involved  in  this  anomalous  arrange 
ment,  the  large  rcon-slave-holding  states,  such  as  New  York  and 
Pennsylvania,  obtained  not  even  a  nominal  equivalent.  The 
provision  relative  to  direct  taxes,  when  viewed  in  all  its  bear 
ings,  is  beneficial  to  the  slave-holding  rather  than  to  the  now- 
slave-holding  states.  *  The  equal  representation  of  the  states  in 
the  Senate,  it  will  not  be  pretended,  confers  undue  power  upon 


*  The  late  Honourable  William  Paterson,  who  was  a  member  of  the  con 
vention  by  which  the  constitution  of  the  United  States  was  formed,  speaking 
of  the  mode  which  is  prescribed  by  that  instrument  for  the  regulation  of  direct 
taxes,  says:  "  The  provision  was  made  in  favour  of  the  Southern  states.  They 
possessed  a  large  number  of  slaves;  they  had  extensive  tracts  of  territory  thinly 
settled  and  not  very  productive.  A  majority  of  the  states  had  but  few  slaves, 
and  several  of  them  a  limited  territory,  well  settled,  and  in  a  high  state  of  cul 
tivation.  The  Southern  states,  if  no  provision  had  been  introduced  in  the 
constitution,  would  have  been  wholly  at  the  mercy  of  the  other  states.  Con 
gress,  in  such  case,  might  tax  slaves,  at  discretion  or  arbitrarily,  and  land  in 
every  part  of  the  Union,  after  the  same  rule  or  measure — so  much  a  head  in 
he  first  instance,  and  so  much  an  acre  in  the  second.  To  guard  them  against 
imposition  in  these  particulars,  ivas  the  reason  of  introducing  the  clause  in  the 
constitution,  which  directs  that  representatives  and  direct  taxes  shall  be  appor 
tioned  among  the  states,  according  to  their  respective  numbers."  See  3  Dallas* 
Reports,  177. 


157 

the  LARGE  non-slave-holding  states.  On  the  contrary,  this 
is  known  to  have  been  the  result  of  a  compromise,  in  which 
the  interest  of  the  small  states  only  was  consulted.  It  was 
deemed  necessary,  in  order  to  preserve  the  federative  system ; 
and  believing  as  I  do,  that  for  this  purpose  it  was  indispensable, 
great  as  was  the  sacrifice  on  the  part  of  the  large  states,  never 
theless,  it  ought,  I  concede,  to  have  been  made. 

This  latter  principle,  of  equal  representation  of  the  several 
states  in  the  Senate,  induced  the  consent  of  the  small  non- 
slave-holding  states  to  the  monstrous  anomaly  in  a  republican 
government  of  the  legislative  representation  of  slaves  by  their 
masters.  No  argument  can  be  advanced  to  give  plausibility  to 
this  article  of  the  constitution.  It  has  been,  already,  the  cause 
of  incalculable  detriment  to  the  nation.  It  has  secured  the  re 
cognition  of  slavery  in  Missouri — it  may  operate  the  like  effect 
in  other  territories  equally  enriched  by  the  bounty  of  Heaven 
— the  like  fit  abodes  of  the  children  of  freemen. 


158 


CHAPTER  II. 

ON  THE  NINTH  SECTION  OF  ARTICLE  II.  OP  THE  CONSTITUTION 
OF  THE  UNITED  STATES. 

AT  the  adoption  of  the  constitution,  a  majority  of  the  states, 
had  but  few  slaves.  In  several,  acts  for  the  abolition  of  slavery  had 
been  passed.  These  states  were  politically  interested  to  oppose 
the  further  importation  of  slaves.  The  ninth  section  of  article 
second  was  accordingly  incorporated  in  the  constitution.  It  is 
in  these  words:  "  The  migration  or  importation  of  such  persons 
as  any  of  the  states  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year  one 
thousand  eight  hundred  and  eight,  but  a  tax  may  be  imposed  on 
such  importation,  not  exceeding  ten  dollars  for  each  person.""5 

*  By  the  article  of  the  constitution  just  quoted,  Congress  was  prevented 
from  passing  any  law  to  prohibit,  prior  to  the  year  1808,  the  importation  of 
slaves  into  the  United  States,  yet,  no  restraint  was  imposed  upon  its  power  to 
prevent  her  citizens  from  engaging  in  the  slave  trade  for  the  supply  of  foreign 
countries.  And  a  convention  of  delegates  from  the  Abolition  Societies  established 
in  the  states  of  Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware,  and 
Maryland,  having  assembled  on  the  first  day  of  January,  A.  D.  1794,  at  Phila 
delphia,  addressed  a  memorial  to  Congress,  requesting,  "  That  a  law  might  be 
passed,  prohibiting  the  traffic  carried  on  by  citizens  of  the  United  States  for  the  sup 
ply  of  slaves  to  foreign  nations,  and  preventing  foreigners  from  fitting  out  vessels 
for  the  slave  trade  in  the  ports  of  the  United  States"  This  memorial  was  acted 
upon  by  Congress  with  great  promptness,  and  on  the  22nd  day  of  March  of 
the  same  year,  an  act  of  this  body  was  passed,  which  prohibited,  under  the 
penalty  of  the  forfeiture  of  the  ship  and  a  fine  of  two  thousand  dollars  for  each 
person  concerned,  any  citizen  of  the  United  States,  or  any  foreigner,  resident 
here,  for  himself,  or  for  any  other  person  whatsoever,  either  as  master,  factor 
or  owner,  from  building,  equipping,  Sec.  any  vessel  within  any  port  or  place  in 
the  United  states,  or  causing,  &c.  for  the  purpose  of  carrying  on  any  trade  or 
traffic  in  slaves  to  any  FOREIGN  COUNTRY.  Ingersoll's  Abridgment,  670.  And 
afterwards,  (May  10,  1800,)  it  was  made  unlawful  for  any  citizen  of  the  United 
States,  or  other  person  residing  within  the  same,  directly  or  indirectly,  to  hold 
any  right  or  property  in  a  vessel  employed  in  the  transportation  of  slaves  from 
one  foreign  country  to  another,  and  a  penalty  was  incurred  by  a  violation  of  this 


159 

As  this  article  concerns  the  slave  trade,  and  not  the  condition 
of  slaves  after  their  introduction  into  our  country,  in  itself  it 
has  no  immediate  connexion  with  the  subject  in  hand.  But 
certain  laws  have  been  enacted  by  Congress  under  the  sanction 
of  it,  from  which  consequences  have  ensued  of  such  a  nature  as 
to  require  more  than  a  passing  notice,  particularly  in  regard  to 
the  subject  treated  of  in  the  first  part*  of  this  sketch.  To  illus 
trate  this  point  satisfactorily,  will  require  a  minute  detail  of  the 
provisions  contained  in  the  acts  of  congress  alluded  to,  as  also  a 
careful  examination  of  several  acts  of  the  assemblies  of  some  of 
the  individual  states  of  the  Union. 

The  time  fixed  by  law  for  the  annual  meeting  of  congress,  is, 
it  will  be  recollected,  the  first  Monday  in  December.  The  in 
terval  between  this  date,  in  the  year  1807,  and  that  at  which, 
by  the  terms  of  the  constitution,  the  importation  of  slaves  might 
be  interdicted,  was  so  brief,  that  it  was  obviously  the  dictate  of 
wisdom  to  begin  with  legislation,  on  so  momentous  a  subject, 
before  the  expiration  of  the  preceding  session.  Accordingly, 
on  the  second  of  March  1807,  an  act  was  passed,  by  which 
such  importation  from  abroad,  was  utterly  prohibited  after  the 
first  day  of  January,  one  thousand  eight  hundred  and  eight. 


act,  of  a  forfeiture  of  such  share  or  right  as  he  might  hold,  &c.  and  a  fine  of 
double  the  value  of  such  share  or  right,  &c.  in  the  vessel,  and,  also,  a  fine 
equal  to  twice  the  value  of  his  interest  in  any  siavc  which,  at  any  time,  might 
have  been  transported  in  any  such  vessel,  Sec.  Citizens  of  the  United  States 
were,  by  the  same  act,  forbidden  to  serve  on  board  any  vessel  employed  in  the 
slave  trade,  under  the  penalty  of  a  fine  not  exceeding  two  thousand  dollars 
and  of  imprisonment  not  exceeding  two  years.  Ibid  672,  673. 

My  purpose  in  introducing  the  subject  of  this  note,  is  to  evidence  the  sen 
timents  of  at  least  a  majority  of  the  people  of  the  United  States,  in  regard  to 
the  slave  trade.  Additional  authority  on  the  same  point,  may  be  derived  from 
another  act  of  Congress,  which  was  passed  Februrary  28th,  1803,  entitled, 
"An  act  to  prevent  the  importation  of  certain  persons  into  certatn  states, 
where,  by  the  laws  thereof,  their  admission  is  prohibited."  This  law,  the  pur 
port  of  which  is  but  obscurely  intimated  by  the  title,  was  designed  as  a  co-ope 
ration  on  behalf  of  the  Federal  Government,  in  carrying  into  effect  laws  which 
had  been  enacted  by  our  Atlantic  states  (both  the  slave-holding  and  the  non- 
slave-holding,)  to  prohibit  the  importation  of  slaves  from  foreign  dominions  in- 
o  their  respective  territories 

*  See  supra,  page  19. 


160 

The  dale  of  this  leading  act  evinces,  in  an  unequivocal  man 
ner,  the  strong  and  general  repugnance  felt  by  the  people  of  the 
United  States  to  the  slave  trade.  But,  while  a  firm  persuasion 
of  the  truth  of  this  remark  compels  me  to  offer  it,  I  cannot  for 
bear  to  add,  that,  viewed  as  a  whole,  the  act  is  so  discordant, 
as  to  involve  in  no  little  obscurity  the  character  of  its  supporters 
for  perspicacious  foresight.  An  analysis  of  its  provisions  will 
sufficiently  elucidate  my  meaning. 

The  first  section  is  short,  and  being  the  ground-work  of  what 
follows,  I  will  extract  it  verbally.     "  From  and  after  the  first 
clay  of  January,  one  thousand  eight  hundred  and  eight,  it  shall 
not  be  lawful  to  import  or  bring  into  the  United  States  or  the 
territories  thereof,  from  any  foreign  kingdom,  place  or  country, 
any  negro,  mulatto  or  person  of  colour,  with  intent  to  hold, 
sell  or  dispose  of  such  negro,  mulatto  or  person  of  colour,  as  a 
slave,  or  to  be  held  to  service  or  labour."     The  second  section 
prohibits  any  person,  after  the  first  day  of  January,  1808,  for 
himself  or  for  any  other  person,  from  being  concerned  in  any 
way  whatever,  in  building,  equipping,  &c.  a  vessel,  in  any  port, 
&c.  of  the  United  States,  for  the  purpose  of  carrying  on  the 
slave  trade ;  and  for  a  transgression  of  this  prohibition,  autho 
rizes  a  forfeiture  of  the  vessel,  her  tackle,  &c.     The  third 
section  enforces  the  restriction  in   the  second,   by  imposing 
a  fine  of  twenty  thousand  dollars  on  each  person  who  shall 
contravene  the  object  of  the  preceding  sections.     The  fourth 
section  is  specially  directed  against  the  actual  importation  of 
slaves.     And  it  is  in  the  provisions  of  this  section,  that  the  dis 
cordancy,  I  have  spoken  of,  is  introduced.     It  may  be  given  as 
follows:  "If  any  citizen  of  the  United  States  or  any  person 
resident  within  the  jurisdiction  of  the  same,  shall,  from  and  after 
the  first  day  of  January,  1808,  take  on  board,  receive  or  trans 
port,  from  any  of  the  coasts  or  kingdoms  of  Africa,  &c.  &c.  any 
negro,  &c.  &c.  in  any  ship  or  vessel,  for  the  purpose  of  selling 
them  in  any  port,  &c.  within  the  jurisdiction  of  the  United 
States,  as  slaves,  &c.  or  shall  be  in  any  way  aiding,  &c.  such 
citizen,  &c.  shall  forfeit  and  pay  five  thousand  dollars,  &c.  &c. 
and  the  ship,  &c.  shall  be  forfeited,  &c.     And  neither  the  im 
porter,  nor  any  person  or  persons  claiming  from  or  under  him, 


161 

shall  hold  any  right  or  title  whatsoever  to  any  negro,  &c.  who 
may  be  imported,  &c.  within  the  United  States,  &c.  in  violation 
of  this  law,  but  the  same  shall  remain  subject  to  any  regula 
tions,  not  contravening  the  provisions  of  this  act,  which  the 
legislatures  of  the  several  states  or  territories  at  any  time 
hereafter  may  make,  for  DISPOSING  of  any  such  negro,mulatto 
or  person  of  colour." 

Had  the  act  stopt  here,  though  the  meaning  would  have  been 
obscure,  as  to  what  was  to  be  understood,  by  the  authority  given 
to  the  different  state  and  territorial  legislatures  to  make  "  regu 
lations,  not  contravening  the  provisions  of  the  act,  FOR  DIS 
POSING  of  any  such  negro,  &c,"  yet,  I  conceive,  it  would  have 
been  held  as  the  proper  construction,  that  the  imported  negro 
could  not  be  retained  as  a  slave.  But  the  sixth  section  removes 
the  obscurity  of  the  fourth,  and  explains  the  intention  of  con 
gress  to  have  been,  that  the  negro,  &c.  though  illegally  import 
ed,  yet  if  so  directed  by  the  state  legislatures,  he  and  his  off 
spring,  should  be  regarded  as  absolute  slaves!!! 

The  sixth  section  is  long,  but  it  is  4oo  important  to  be  omitted. 
It  is  as  follows:  "If  any  person  or  persons  whatever,  shall 
from  and  after  the  first  day  of  January,  1808,  purchase  or  sell 
any  negro,  mulatto,  or  person  of  colour,  for  a  slave,  or  to  be 
held  to  service  or  labour,  who  shall  have  been  imported  or 
brought  from  any  foreign  kingdom,  place  or  country,  or  from 
the  dominions  of  any  foreign  state,  immediately  adjoining  to 
the  United  States,  into  any  port  or  place  within  the  jurisdiction 
of  the  United  States,  after  the  last  day  of  December,  1807, 
knowing  at  the  time  of  such  purchase  or  sale,  such  negro,  mu 
latto,  or  person  of  colour,  was  so  brought  within  the  jurisdiction 
of  the  United  States  as  aforesaid,  such  purchaser  and  seller  shall 
severally  forfeit  and  pay  for  every  negro,  mulatto  or  person  of 
colour,  so  purchased,  &c.  as  aforesaid,  eight  hundred  dollars; 
one  moiety  to  the  United  States,  &c. :  Provided,  thai  the  afore 
said  forfeiture  shall  not  extend  to  THE  SELLER  OR  PURCHASER 
of  any  negro,  fyc.  who  may  be  sold  or  disposed  of  IN  VIRTUE 

OF  ANY  REGULATION  WHICH  MAY  HEREAFTER  BE  MADE  BY  ANY 

OF  THE  LEGISLATURES  of  the  several  states  in  that  respe&t,  IN 

21 


162 

PURSUANCE  OP  THIS  ACT,  and  the  constitution  of  the  United 
States." 

The  legislature  of  Louisiana  was  not  tardy  in  improving  the 
privileges  thus  preposterously  conferred  by  congress.  By  an 
act  of  assembly,  passed  March  20th,  1809,  it  was  enacted,  that 
every  negro,  mulatto  or  person  of  colour,  who  had  been  poste 
rior  to  the  first  day  of  January,  1808,  or  who  should  be,  at 
any  time  thereafter,  imported  into  the  territory  of  Louisiana 
from  any  foreign  kingdom,  place  or  country,  with  intent  to  be 
held,  sold  or  disposed  of,  for  a  slave,  or  to  be  held  to  service  or 
labour,  either  for  life  or  for  a  term  of  years,  should  be  sold  by  vir 
tue  of  a  judgment  to  be  rendered  by  the  territorial  courts,  before 
whom  proof  of  such  importation  should  be  made,  and  that  the 
proceeds  of  such  sale  should  be  delivered  into  the  hands  of  the 
treasurer  of  the  territory,  to  be  afterwards  disposed  of  as  the 
legislature  might  deem  proper.  1  Martin' s  Digest ,  664.  North 
Carolina  and  Georgia,  respectively  adopted  a  similar  law,  the 
former  in  1816,  Hay  wood's  Manual,  545,  et  seq.,  the  latter* 
in  1817.  Prince's  Digest,  463. 

Public  attention  had  not  yet  been  attracted  to  the  inconsis 
tency  of  the  act  of  congress  which  I  have  indicated.  And  what 
may  seem  not  a  little  surprising,  on  the  20th  of  April,  1818, 
another  act  of  congress  was  passed,  imposing  more  severe  pen 
alties  on  the  prosecution  of  the  slave  trade,  but  re-enacting  the 
odious  sixth  section  of  the  act  of  March  2d,  1807,  and  recog- 


*  The  act  of  Georgia,  contains  a  provision,  equally  just  and  humane  which 
is  not  to  be  found  in  the  act  of  North  Carolina  or  in  that  of  Louisiana.  Having 
authorized  the  governor  to  make  sale  of  the  unhappy  captives,  who,  though 
illegally  imported,  were,  nevertheless  subjected  to  the  control  of  the  state  le 
gislatures,  and  might  be  by  them,  consigned  to  interminable  bondage,  the 
subjoined  section  was  added:  "If  previous  to  any  sale  of  such  persons  of 
colour,  the  society  for  the  colonization  of  free  persons  of  colour  within  the 
limited  States,  will  undertake  to  transport  them  to  Africa,  or  any  other  fo. 
reign  place  which  they  may  procure  as  a  colony  for  free  persons  of  colour  at 
the  sole  expense  of  said  society,  and  shall  likewise  pay  to  his  excellency  the 
governor,  all  expenses  incurred  by  the  state  since  they  have  been  captured  and 
condemned,  his  excellency  the  governor  is  authorized  and  requested  to  aid  in 
promoting  the  benevolent  views  of  said  society  in  such  manner  as  he  may 
deem  expedient."  Prince's  Digest^  463. 


163 

nizitig  the  laws  of  the,  several  state  legislatures  on  this  sub 
ject,  which  have  just  been  commented  upon ! !  See  IngersoWs 
Mridgment^  680. 

The  evil,  however,  soon  afterwards,  reached  its  crisis.  The 
repetition  of  such  monstrous  injustice,  awaked  the  slumbering 
energies  of  the  friends  of  injured  Africa:  and  the  same  congress 
by  which  the  act  of  1818  had  been  passed,  was  induced  to 
resume  the  consideration  of  the  slave  trade,  and,  having  done 
so,  by  a  law  of  March  3d,  1819,  authorized  the  president,  at  his 
discretion,  to  cause  any  of  the  public  armed  vessels  of  the  United 
States  to  be  employed  to  cruise  on  any  of  the  coasts  of  the 
United  States,  &c.,  or  on  the  coast  of  Africa,  in  order  to  sup 
press  the  slave  trade;  and  directed  that  when  any  vessels  should 
be  captured,  having  negroes,  &c.  on  board,  &c.  they  should  be 
delivered  to  the  marshal  of  the  district  into  which  the  vessel 
might  be  brought,  if  the  same  should  be  a  port  of  the  United 
States,  and  if  brought  in  elsewhere,  to  an  agent  whom  the  pre 
sident  was  empowered  to  appoint  for  such  purpose,  &c.  And 
authority  was  given  to  the  president  to  make  such  arrangements 
as  he  should  think  expedient  for  the  safe-keeping,  support,  and 
removal  beyond  the  limits  of  the  United  State  of  such  negroes, 
&c.  And  to  meet  the  case  of  slave  vessels,  which  might  es 
cape  seizure  from  the  public  armed  vessels,  it  was  enacted,  that 
when  any  citizen  or  other  person  should  lodge  information  with 
the  attorney  general  for  the  district  of  any  state,  &c.  that  any 
negro,  &c.  had  been  imported,  &c.  contrary  to  the  provisions 
of  the  acts  for  the  suppression  of  the  slave  trade,  such  attorney 
should  be  bound  forthwith  to  commence  a  prosecution,  &c.  and 
process  was  to  be  issued  against  the  person  charged  with  hold 
ing  such  negro,  &c.  and  if  upon  the  verdict  of  a  jury,  it  should 
be  ascertained,  that  any  such  negro,  &c.  had  been  imported  con 
trary  to  the  acts  of  congress,  &c.  it  was  made  the  duty  of  the 
court  to  direct  the  marshal,  &c.  to  take  the  said  negroes,  &c. 
into  his  custody  for  safe  keeping,  subject  to  the  orders  of  the 
president  of  the  United  States,  &c.  &c.  The  act  also  grants  to 
the  informer  a  bounty  of  fifty  dollars  for  each  negro  thus  de 
livered  into  the  custody  of  the  marshal.  See  Ingersoll's  *ftbridg~ 


164 

ment,  683.     And  lastly,  I  he  sections  of  the  former  acts  which 
conferred  authority  upon  the  state  legislatures  to  dispose  of 

the  ILLEGALLY  IMPORTED  NEGROES,  WERE  REPEALED.* 

*  Notwithstanding  this  repeal,  the  state  of  Alabama,  on  first  day  of  January, 
1823,  passed  an  act,  entitled,  "  an  act  to  cany  into  effect  the  laws  of  the  United 
States  prohibiting  the  slave  trade."  The  provisions  of  this  extraordinary  viola 
tion  of  the  act  of  congress,  are  similar  to  those  comprised  in  the  acts  of  Louisiana 
and  North  Carolina,  upon  which  I  hav^  animadverted,  authorizing  in  express 
terms,  an  agent,  to  be  appointed  by  the  governor  of  the  state,  to  sell  for  the 
benefit  of  the  state,  all  persons  of  colour  who  should  be  brought  into  the 
United  States,  and  within  the  jurisdiction  of  Alabama,  contrary  to  the  laws  of 
congress  prohibiting  the  slave  trade ! ! !  See  Toulmin's  Digest,  643. 


165 


CHAPTER  III. 

OF  THE  ACT  OP  CONGRESS  RELATIVE  TO  FUGITIVE  SLAVES. 

THE  Federal  Government  being  composed  of  thirteen  dis 
tinct  and  independent  sovereignties,  in  four  of  which,  before  the 
constitution  of  the  United  States  was  framed,  slavery  had  been 
abolished,  it  was  deemed  expedient  to  secure  by  a  stipulation  to 
be  inserted  in  the  constitution,  a  right  in  the  citizens  of  one 
state,  whose  servants  or  slaves  should  escape  from  their  masters 
and  become  residents  of  another  state,  to  reclaim  such  fugitives 
and  subject  them  again  to  bondage.  This  stipulation  is  com 
prised  in  the  third  division  of  section  2d,  article  4,  in  these 
words:  "  No  person  held  to  service  or  labour  in  one  state  under 
the  laws  thereof,  escaping  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such  ser 
vice  or  labour,  but  shall  be  delivered  up,  on  claim  of  the  party 
to  whom  such  service  or  labour  may  be  due." 

Upon  the  authority  of  this  provision  of  the  constitution,  an 
act  of  Congress,  dated  February  12th,  1793,  has  been  passed, 
which,  in  its  actual  enforcement,  is  the  source  of  bitter  anguish 
to  its  immediate  victims,  of  deplorable  excitement  among  the 
free  coloured  population,  and  of  painful  sympathy  and  regret  to 
the  humane  and  patriotic  white  citizen  who  may  be  compelled 
to  witness  the  spectacle. 

The  part  of  the  act  of  Congress  just  mentioned,  which  bears 
upon  the  present  inquiry,  is  as  follows:  "  When  a  person  held 
to  labour  in  any  of  the  United  States,  or  in  either  of  the  terri 
tories  on  the  north-west  or  south  of  the  river  Ohio,  under  the 
laws  thereof,  shall  escape  into  any  other  of  the  said  states  or 
territories,  the  person  to  whom  such  labour  or  service  may  be 
due,  his  agent  or  attorney,  is  hereby  empowered  to  seize  or 
arrest  such  fugitive  from  labour,  and  to  take  him  or  her  before 
any  judge  of  the  circuit  or  district  courts  of  the  United  States, 
residing  or  being  within  the  state,  or  before  any  magistrate  of  a 


166 

county,  city  or  town  corporate,  wherein  such  seizure  or  arrest 
shall  be  made,  and  upon  proof  to  the  satisfaction  of  such  judge 
or  magistrate,  either  by  oral  testimony  or  affidavit  taken  before 
and  certified  by  a  magistrate  of  any  such  state  or  territory,  that 
the  person  so  seized  or  arrested,  doth,  under  the  laws  of  the  state 
or  territory  from  which  he  or  she  fled,  owe  service  or  labour  to 
the  person  claiming  him  or  her,  it  shall  be  the  duty  of  such 
judge  or  magistrate  to  give  a  certificate  thereof  to  such  claimant, 
his  agent  or  attorney,  which  shall  be  sufficient  warrant  for  re 
moving  the  said  fugitive  from  labour  to  the  state  or  territory 
from  which  he  or  she  fled."  Ingersoll's  •Abridgment ,  310. 

Pennsylvania,  from  her  contiguity  to  several  of  the  slave- 
holding  states,  has,  probably  been  the  forum  of  most  of  the  de 
cisions  which  have  been  made  under  this  law.  The  records, 
however,  of  but  few  of  these  have  been  preserved — a  majority, 
unfortunately,  having  occurred  before  justices  of  the  peace,  se 
lected  by  the  claimant  from  their  known  willingness  to  subserve 
his  interest,  rather  than  to  administer  with  impartiality  the  au 
thority  delegated  to  them. 

The  act  of  Congress,  and  the  article  of  the  constitution  of  the 
United  States,  above  cited,  are  so  essentially  connected,  that  the 
judicial  decisions  to  which  I  have  alluded,  have  been  made 
generally  as  much  in  reference  to  the  one  as  to  the  other.  I 
shall,  therefore,  not  attempt  a  distinct  classification. 

The  first  case  of  an  important  character,  as  relates  to  the  pre 
sent  chapter,  was  that  of  Butler  vs.  Hopper,  already  inserted  at 
considerable  length.  It  was  there  said,  by  Judge  Washington, 
that  "the  second  section  of  the  fourth  article,  (i.  e.  of  the  con 
stitution  of  the  United  States,)  which  declares,  that  no  person 
held  to  labour  or  service  in  one  state,  under  the  laws  thereof, 
ESCAPING  into  another,  shall,  in  cons  equence  of  any  law 
therein,  be  discharged  from  such  service,  did  not  extend  to  the 
case  of  a  slave  voluntarily  carried  by  his  master  into  another 
state,  and  there  leaving  him  under  the  protection  of  some  law 
declaring  him  free."  1  Washington's  Circ.  Court  Rep.  501. 

At  October  term,  1823,  the  principle  of  the  decision  in  Sut 
ler  vs.  Hopper,  was  again  recognised  by  Judge  Washington, 
on  an  application  preferred  by  J.  W.  Simmons,  agreeably  to 


167 

the  act  of  Congress  of  February  12,  1793,  for  a  certificate  that 
James  Mathist,  a  black  man,  was  his  slave.  It  was  proved  in 
this  case,  that  Simmons  was  a  citizen  of  Charleston,  South 
Carolina,  and  had  lived  there,  generally,  till  within  a  few  years, 
when  he  came  to  the  city  of  Philadelphia,  took  a  house,  and 
with  his  family  had  resided  in  the  city  ever  since.  James  was 
admitted  to  have  been  his  slave  before  and  at  the  time  of  his 
leaving  Charleston,  and  as  such  to  have  been  brought  by  him  to 
Philadelphia,  in  June,  1822.  Upon  these  facts  the  Judge  re 
fused  the  certificate,  and  dismissed  the  application,  saying,  that 
the  act  of  Congress  applied  exclusively  to  fugitive  slaves,  and 
not  to  those  whom  their  masters  themselves  brought  from  one 
stale  to  another. 

A  third  case  may  be  adduced,  decided  on  the  twentieth  of 
February,  1826,  by  Judge  Barnes,  now  President  of  the  Dis 
trict  Court  for  the  city  and  county  of  Philadelphia,  upon  the 
following  facts:  "  Marshall  Green,  a  black  man,  was  claimed 
as  a  slave,  by  Peter  Buchell,  administrator,  &c.  of  John  Bu- 
chell,  deceased,  who  for  many  years  before,  and  at  the  time  of 
his  decease,  was  an  inhabitant  of  Cecil  county,  Maryland. 
About  four  years  previous  to  the  hearing  before  Judge  Barnes, 
and  one  year  before  the  death  of  John  Buchell,  Mar  shall  abscond 
ed  from  his  master's  residence,  and  continued  absent  until  August, 
1825,  when  he  was  arrested  by  Peter  Buchell,  and  carried  back 
to  Maryland.  At  the  time  when  he  absconded,  he  took  with  him 
his  three  children,  who  were  alleged  also  to  be  slaves.  After 
Mar  shall7  s  return  to  Maryland,  in  August,  1825,  Peter  Buchell, 
then  his  master,  in  order  to  obtain  possession  of  these  children, 
gave  himpermission,andfor  that  purpose  furnished  him  with 
a  PASS,  to  come  into  Pennsylvania,  upon  his  express  promise, 
that  he  would,  within  a  certain  period,  if  successful  in  the  pur 
suit  of  his  children,  bring  them  to  his  master — if  not  successful, 
he  would  return  himself.  The  time  of  absence  granted  by  the 
master  having  expired,  Marshall  was  again  arrested,  by  virtue 
of  a  warrant  issued  by  Judge  Barnes,  in  compliance  with  the 
directions  of  the  act  of  assembly  of  the  commonwealth  of  Penn 
sylvania,  passed  March  25th,  1826,  and  brought  before  him  for 
a  hearing.  The  Judge  having  taken  time  for  deliberation,  re- 


168 

fused  the  certificate  applied  for  by  the  master,  under  the  act  of 
Congress,  upon  the  ground,  which  was  ably  supported  in  the 
opinion  he  pronounced,  that  the  act  of  Congress  did  not  embrace 
a  case  like  that  before  him,  inasmuch  as  Marshall  was  not  a 
fugitive  slave — had  not  "  escaped  from  one  state  into  another" 
— but,  by  his  master's  consent,  had  left  Maryland  and  come 
into  Pennsylvania. 

A  construction  of  considerable  importance,  has  been  placed 
upon  another  portion  of  the  act  of  congress,  by  the  Supreme 
Court  of  Pennsylvania,  in  a  case  brought  before  it  in  1819.  The 
following  is  the  reporter's  statement  prefixed  to  the  decision  of 
the  court:  "This  was  a  writ  de  homine  replegiando,  sued  out 
by  the  plaintiff,  a  coloured  man,  against  the  defendant,  who  was 
the  keeper  of  the  prison  of  the  city  and  county  of  Philadelphia, 
and  the  defendant's  counsel  now  moved  to  quash  it,  on  the 
ground  of  its  having  issued  contrary  to  the  constitution  and 
laws  of  the  United  States.  The  facts  were  submitted  to  the 
court,  in  a  case  stated,  by  which  it  appeared,  that  the  plaintiff 
having  been  claimed  by  Rasin  Gale  of  Kent  county,  in  the 
state  of  Maryland,  as  a  fugitive  from  his  service,  was  arrested 
by  him,  in  the  county  of  Philadelphia,  and  carried  before  Rich 
ard  Renshaw,  Esq.  justice  of  the  peace,  who  committed  the 
plaintiff  to  prison,  in  order  that  inquiry  might  be  made  into  the 
claim  of  the  said  Gale.  The  plaintiff  then  sued  out  a  habeas 
corpus,  returnable  before  Thomas  Armstrong,  Esq.  an  associ 
ate  judge  of  the  Court  of  Common  Pleas.  Judge  Armstrong 
having  heard  the  parties,  gave  a  certificate,  that  it  appeared  to 
him,  by  sufficient  testimony,  that  the  plaintiff  owed  labour  or 
service  to  said  Gale,  from  whose  service,  in  the  state  of  Mary 
land,  he  had  absconded,  and  the  said  judge,  therefore,  in  pur 
suance  of  the  act  of  the  congress  of  the  United  States,  &c.  de 
livered  the  said  certificate  to  the  said  Gale,  in  order  that  the 
plaintiff  might  be  removed  to  the  state  of  Maryland. "  The 
court  having  held  the  case  under  advisement  for  several  days, 
directed  the  writ  to  be  quashed,  on  the  ground,  that  by  the  act 
of  congress,  the  certificate  of  the  judge  was  conclusive  evidence 
of  the  right  of  the  master  to  remove  the  plaintiff  to  the  state  of 
Maryland,  and,  therefore,  that  no  writ  of  a  civil  nature  could 


169 

be  issued  to  interrupt  the  master  in  tiie  exercise  of  the  power 
conferred  upon  him  by  the  certificate.  Wright,  otherwise  called 
Hall  vs.  Deacon,  5  Sergeant  fy  Rawle's  Reports,  62-4. 

But  the  constitution  of  the  United  States  does  not  exempt 
runaway  slaves  from  the  penal  laws  of  a  state  in  which  they  may 
happen  to  flee  upon  escaping  from  their  masters.  As,  where  a 
slave  had  absconded  from  his  master,  living  in  the  state  of  Ma- 
ryland,  and  was  afterwards  confined  in  prison  in  the  city  of 
Philadelphia,  upon  the  charge  of  fornication  and  bastardy,  com 
mitted  during  his  residence  in  Pennsylvania,  the  Supreme  Court 
refused  to  deliver  him  to  his  master,  but  ordered  him  to  be  de 
tained,  to  answer  the  charge  which  had  been  made  against  him. 
Case  of  the  Commoniuealth,  on  the  relation  of  Johnson,  a  ne 
gro  vs.  Holloway,  3  Sergeant  8?  Rawle's  Reports,  4-6.  And 
see  for  a  similar  opinion  9  Johnson's  (N.  Y.)  Reports,  70, 
Glen  vs.  Hodges. 

But,  it  was  held  in  this  latter  case,  by  the  Supreme  Court  of 
the  state  of  New  York,  that  where  a  slave  had  absconded  from 
his  master  living  in  the  state  of  New  York,  and  had  taken  re 
fuge  in  Vermont,  that  a  citizen  of  this  latter  state,  who  had 
traded  with  him  under  the  belief  that  he  was  free,  and  as  such 
had  given  credit  to  him  for  goods,  could  not  issue  civil  process 
to  prevent  the  master  from  reclaiming  him,  inasmuch  as  a  slave 
is,  in  law,  incapable  of  making  a  contract.* 

Much  complaint  having  been  made  against  justices  of  the 
peace  and  aldermen  for  an  abuse  of  the  powers  given  to  them 
by  the  act  of  congress,  the  legislature  of  Pennsylvania,  passed 
an  act,  dated  March  27th,  1820,  prohibiting  them  from  the  fur 
ther  exercise  of  these  powers.  And  on  the  25th  of  March,  1826, 
the  subject  of  arresting  fugitive  slaves  having  been  again  brought, 
in  a  very  extraordinary  manner,  before  the  legislatue,  a  law  was 
passed,  which,  besides  the  re-enactment  of  the  prohibition  in 
the  act  of  1820,  contains  many  other  regulations  which,  from 
their  importance,  are  here  inserted. 

"Sect.  3.  Be  it  enacted,  fyc.  That  when  a  person  held  to  la 
bour  or  service  in  any  of  the  United  States,  or  in  either  of  the 
territories  thereof,  under  the  laws  thereof,  shall  escape  into  this 


*  See  supra,  page 

22 


170 

commonwealth,  the  person  to  whom  such  labour  or.  service  i$ 
due,  his  or  her  duly  authorized  agent  or  attorney,  constituted  in 
writing,  is  hereby  authorized  to  apply  to  any  judge,  justice  of 
the  peace,  or  alderman,  who  on  such  application,  supported  by 
the  oath  or  affirmation  of  such  claimant,  or  authorized  agent  or 
attorney,  as  aforesaid,  that  the  said  fugitive  hath  escaped  from 
his  or  her  service,  or  from  the  service  of  the  person  for  whom 
he  is  duly  constituted  agent  or  attorney,  shall  issue  his  warrant 
under  his  hand  and  seal,  and  directed  to  the  sheriff  or  any  consta 
ble  of  the  proper  city  or  county,  authorizing  and  empowering 
said  sheriff,  or  constable,  to  arrest  and  seize  said  fugitive,  who 
shall  be  named  in  said  warrant,  and  to  bring  said  fugitive  be 
fore  a  judge  of  the  proper  county,  which  said  warrant  shall  be 
in  the  form  or  to  the  effect  following:  " State  of  Pennsylvania, 
county,  ss:  The  commonwealth  of  Penn 
sylvania  to  the  sheriff  or  any  constable  of 
county,  greeting.  Whereas  it  appears  by  the  oath,  or  solemn 
affirmation,  of  that 

was  held  to  labour  or  service,  to  ,  of 

county,  in  the  state  of  ,  and 

that  the  said  hath  escaped  from  the  labour 

and  service  of  the  said  ,    .     You  are 

therefore  commanded  to  arrest  and  seize  the  body  of  the  said 

,  if  he  be  found  in  your  county,  and 

bring  him,  forthwith,  before  the  person  issuing  the  warrant,  if  a 
judge,  (or  if  a  justice  of  the  peace  or  alderman)  before  a  judge 
of  the  court  of  common  pleas,  or  of  the  district  court,  as  the 
case  may  be,  of  your  proper  county,  or  recorder  of  a  city,  so 
that  the  truth  of  the  matter  may  be  inquired  into,  and  the  said 

be  dealt  with  as  the  constitution  of 

the  United  States  and  the  laws  of  this  commonwealth  directs. 
Witness  our  said  judge,  (or  alderman,  or  justice,  as  the  case 
may  be,)  at  this  day  of 

A.  D.  one  thousand  eight  hundred  and  By 

virtue  of  such  warrant  the  person  named  therein  may  be  arrest 
ed  by  the  proper  sheriff,  or  constable,  to  whom  the  same  shall 
be  delivered  within  the  proper  city  or  county. 

Sect.  .4.  Be  it  enacted,  fyc.  That  no  judge,  justice  of  the  peace 


171 

or  alderman,  shall  issue  a  warrant,  on  the  application  of  any 
agent  or  attorney,  as  provided  in  the  said  third  section,  unless 
the  said  agent  or  attorney  shall,  in  addition  to  his  own  oath  or 
affirmation,  produce  the  affidavit  of  the  claimant  of  the  fugitive, 
taken  before,  and  certified  by  a  justice  of  the  peace  or  other  ma 
gistrate  authorized  to  administer  oaths,  in  the  state  or  territory 
in  which  such  claimant  shall  reside,  and  accompanied  by  the  cer 
tificate  of  the  authority  of  such  justice  or  other  magistrate,  to  ad 
minister  oaths,  signed  by  the  clerk  or  prothonotary,  and  authen 
ticated  by  the  seal  of  a  court  of  record,  in  such  state  or  territory, 
which  affidavit  shall  state  the  said  claimant's  title,  to  the  service 
of  such  fugitive,  and  also  the  name,  age  and  description  of  the 
person  of  such  fugitive. 

Sect.  5.  Be  it  enacted,  fyc.  That  it  shall  be  the  duty  of  any 
judge,  justice  of  the  peace  or  alderman,  when  he  grants  or  issues 
any  warrant  under  the  provisions  of  the  third  section  of  this  act, 
to  make  a  fair  record  on  his  docket,  of  the  same,  in  which  he 
shall  enter  the  name  and  place  of  residence  of  the  person  on 
whose  oath  or  affirmation  the  said  warrant  may  be  granted  and 
also  if  an  affidavit  shall  have  been  produced  under  the  provisions 
of  the  fourth  section  of  this  act,  the  name  and  place  of  residence 
of  the  person  making  such  affidavit,  and  the  age  and  description 
of  the  person  of  the  alleged  fugitive  contained  in  such  affidavit, 
and  shall  within  ten  days  thereafter,  file  a  certified  copy  thereof 
in  the  office  of  the  clerk  of  the  court  of  general  quarter  sessions 
of  the  peace  or  mayor's  court,  of  the  proper  city  or  county;  and 
any  judge,  justice  of  the  peace  or  alderman,  who  shall  refuse,  or 
neglect  to  comply  with  the  provisions  of  this  section,  shall  be 
deemed  guilty  of  a  misdemeanor  in  office,  and  shall,  on  con 
viction  thereof,  be  sentenced  to  pay,  at  the  discretion  of  the 
court,  any  sum  not  exceeding  one  thousand  dollars,  one  half  to 
the  party  prosecuting  for  the  same,  and  the  other  half  to  the 
commonwealth;  and  that  any  sheriff  or  constable,  receiving  and 
executing  the  said  warrant,  shall  without  unnecessary  delay, 
carry  the  person  arrested  before  the  judge,  according  to  the  exi 
gency  of  the  warrant;  and  any  sheriff  or  constable,  who  shall  re 
fuse  or  wilfully  neglect  so  to  do,  shall  on  conviction  thereof,  be 
sentenced  to  pay,  at  the  discretion  of  the  court,  any  sum  not  ex- 


172 

ceeding  five  hundred  dollars,  one  half  to  the  party  prosecutip-g 
for  the  same,  and  the  other  half  to  the  commonwealth,  or  shall 
also  he  sentenced  to  imprisonment,  at  hard  labour,  for  a  time 
not  exceeding  six  months,  or  both. 

Sect.  6.  Be  it  enacted,  fyc.  That  the  said  fugitive  from  labour 
or  service,  when  so  arrested,  shall  be  brought  before  a  judge,  as 
aforesaid,  and  upon  proof,  to  the  satisfaction  of  such  judge,  that 
the  person  so  seized  or  arrested,  doth,  under  the  laws  of  the 
state  or  territory  from  which  he  or  she  fled,  owe  service  or  la 
bour  to  the  person  claiming  him  or  her,  it  shall  be  the  duty  of 
such  judge  to  give  a  certificate  thereof,  to  such  claimant,  his  or 
her  duly  authorized  agent  or  attorney,  which  shall  be  sufficient 
warrant  for  removing  the  said  fugitive  to  the  state  or  territory 
from  which  he  or  she  fled:  Provided,  That  the  oath  of  the  owner 
or  owners,  or  other  person  interested,  shall  in  no  case  be  receiv 
ed  in  evidence,  before  the  judge,  on  the  hearing  of  the  case. 

Sect.  7.  Be  it  enacted,  fyc.  That  when  the  fugitive  shall  be 
brought  before  the  judge,  agreeably  to  the  provisions  of  this  acb 
and  either  party  allege,  and  prove  to  the  satisfaction  of  the  said 
judge,  that  he  or  she  is  not  prepared  for  trial,  and  have  testimo 
ny  material  to  the  matter  in  controversy  that  can  be  obtained  in 
a  reasonable  time,  it  shall  and  may  be  lawful,  unless  security, 
satisfactory  to  the  said  judge,  be  given,  for  the  appearance  of  the 
said  fugitive,  on  a  day  certain,  to  commit  the  said  fugitive  to 
the  common  jail  for  safe  keeping,  there  to  be  detained  at  the  ex 
pense  of  the  owner,  agent  or  attorney,  for  such  time  as  the  said 
judge  shall  think  reasonable  and  just,  and  to  a  day  certain,  when 
the  said  fugitive  shall  be  brought  before  him  by  habeas  corpus, 
in  the  court  house  of  the  proper  county,  or  in  term  time,  at  the 
chamber  of  the  said  judge,  for  final  hearing  and  adjudication: 
Provided,  That  if  the  adjournment  of  the  hearing  be  requested 
by  the  claimant,  his  agent  or  attorney,  such  adjournment  shall 
not  be  granted,  unless  the  said  claimant,  his  agent  or  attorney, 
shall  give  security,  satisfactory  to  the  judge,  to  appear  and  pro 
secute  his  claim,  on  the  day  to  which  the  hearing  shall  be  ad 
journed:  Provided,  That  on  the  hearing  last  mentioined,  if  the 
judge  committing  the  said  fugitive,  or  taking  the  security  as 
aforesaid,  should  be  absent,  sick  or  otherwise  unable  to  attend, 


173 

Jt  shall  be  the  duty  of  either  of  the  other  judges,  on  notice 
to  attend  to  the  said  hearing,  and  to  decide  thereon. 

Sect.  9.  Be  it  enacted,  fyc.  That  no  alderman  or  justice  of 
the  peace  of  this  commonwealth  shall  have  jurisdiction,  or  take 
cognizance  of  the  case  of  any  fugitive  from  labour,  from  any  of 
the  United  States  or  territories,  under  a  certain  act  of  congress, 
passed  on  the  twelfth  day  of  February,  one  thousand  seven  hun 
dred  and  ninety-three,  entiled  "An  act  respecting  fugitives  from 
justice,  and  persons  escaping  from  the  service  of  their  masters;" 
nor  shall  any  alderman  or  justice  of  the  peace,  of  this  common 
wealth,  issue  or  grant  any  certificate  or  warrant  of  removal,  of 
any  such  fugitive  from  labour,  as  aforesaid,  except  in  the  manner 
and  to  the  effect  provided  in  the  third  section  of  this  act,  upon 
the  application,  affidavit  or  testimony  of  any  person  or  persons 
whatsoever,  under  the  said  act  of  congress,  or  under  any  other 
law,  authority  or  act  of  the  congress  of  the  United  States;  and  if 
any  alderman  or  justice  of  the  peace  of  this  commonwealth,  shall 
contravene  the  provisions  of  this  act,  take  cognizance  or  juris 
diction  of  the  case  of  any  such  fugitive  as  aforesaid,  except  in  the 
manner  herein  before  provided,  or  shall  grant  or  issue  any  cer 
tificate  or  warrant  of  removal  as  aforesaid,  then,  and  in  either 
case,  he  shall  be  deemed  guilty  of  a  misdemeanor  in  office,  and 
shall  on  conviction  thereof,  be  sentenced  to  pay,  at  the  discretion 
of  the  court,  any  sum  not  less  than  five  hundred  dollars,  nor  ex 
ceeding  one  thousand  dollars,  the  one  half  to  the  party  prosecut 
ing  for  the  same,  and  the  other  half  to  the  use  of  this  common 
wealth. 

Sect.  10.  Be  it  enacted,  $c.  That  it  shall  be  the  duty  of  the 
judge  or  recorder,  of  any  court  of  record  of  this  commonwealth, 
when  he  grants  or  issues  any  certificate  or  warrant  of  removal, 
of  any  negro  or  mulatto,  claimed  to  be  a  fugitive  from  labour, 
to  the  state  or  territory  from  which  he  or  she  fled,  in  pursuance 
of  an  act  of  congress,  passed  on  the  twelfth  day  of  February,  one 
thousand  seven  hundred  and  ninety-three,  entitled  "An  act  re 
specting  fugitives  from  justice,  and  persons  escaping  from  the 
service  of  their  masters,"  and  of  this  act,  to  make  a  fair  record 
of  the  same,  in  which  he  shall  enter  the  name,  age,  sex  and  a 
general  description  of  the  person  of  the  negro  or  mulatto,  for 


174 

whom  he  shall  grant  such  certificate  or  warrant  of  removal,  to 
gether  with  the  evidence  and  the  name  of  places  of  residence  of 
the  witnesses,  and  the  party  claiming  such  negro  or  mulatto,  and 
shall  within  ten  days  thereafter,  file  a  certified  copy  thereof,  in 
the  office  of  the  clerk  of  the  court  of  general  quarter  sessions  of 
the  peace,  or  mayor's  court  of  the  city  or  county  in  which  he  may 
reside." 

But,  notwithstanding  the  tendency  of  these  regulations,  is  to 
throw  around  the  person  claimed  as  a  fugitive  slave,  a  much 
greater  security  than  he  before  possessed,  yet  since,  by  the  de 
cision  of  the  Supreme  Court  of  the  state,  the  certificate  of  the 
judge,  &c.  is  to  be  regarded  as  conclusive  evidence  of  a  right  in 
the  individual  to  whom  it  is  granted,  to  remove  his  captive  to  a 
land  where  his  very  colour  is  his  condemnation,  it  is  manifest, 
that  even  in  Pennsylvania,  great  injustice  to  coloured  persons  may 
still  be  perpetrated  with  impunity.  But  in  those  states,  where 
a  justice  of  the  peace,  with,  perhaps,  no  other  knowledge  of  ju 
risprudence  than  the  almost  boundless  extent  of  his  powers,  and 
no  regard  for  his  reputation,  except  what  the  dread  of  punishment 
may  inspire,  sits,  if  he  so  please,  in  the  privacy  of  his  cham 
ber,  the  sole  arbiter  of  the  law  and  the  fact,  who  will  say, 
that  manstealing  may  not  be  prosecuted  under  the  panoply  of 
the  law? 


175 


CHAPTER  IV. 

OP  THE  JURISDICTION  OF  THE  FEDERAL  GOVERNMENT  OVER  THE 
TERRITORIES  NOT  YET  FORMED  INTO  STATES. 

By  several  treaties  with  foreign  powers,  and  by  cessions 
from  many  of  the  original  states  of  the  confederacy,  the  Fede 
ral  Government  has,  at  different  times,  acquired  lawful  and 
peaceable  possession  of  a  vast  extent  of  country,  much  of  which 
is  not  yet  formed  into  states,  but  is  known  by  the  name  of  Ter 
ritories.  Over  these  Territories,  the  Federal  Government  is 
expressly  authorized  by  the  constitution,  to  exercise  entire  ju 
risdiction.  The  provision  alluded  to,  of  the  constitution,  is 
this:  "Congress  shall  have  power  to  dispose  of,  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States.  '*  J3.rt.  4,  §  3.  Un 
less,  therefore,  the  treaties  and  acts  of  cession  impose  condi 
tions,  the  authority  of  the  Federal  Government  over  the  Terri 
tories,  is  without  limit.  And  such  is  not  only  the  plain  intent, 
but  has  been  the  uniform  construction  of  this  article  of  the  con 
stitution. 

The  territory  north  west  of  the  river  Ohio,  was  ceded,  hap 
pily,  upon  the  condition,  that  slavery  should  not  be  permitted 
there!  On  the  contrary,  the  deed  of  cession  of  the  territory 
south  of  the  same  river,  forming  at  this  time  the  state  of  Ten 
nessee,  made  it  imperative  on  Congress  to  tpleratc  it  within 
the  limits  of  that  cession.  The  treaties  by  which  the  Federal 
Government  derive  title  to  Louisiana  and  the  Floridas,  con 
tain  no  provision  on  the  subject. 

With  respect  to  Louisiana,  previous  to  the  formation  of  a 
state  out  of  a  part  of  its  territory,  it  was  competent  to  the  United 
States  to  have  annihilated  the  institution  of  slavery  within  the 
whole  of  its  extensive  borders.  It  is  competent  for  her  now  to 
do  so,  as  to  those  portions  which  are  not  comprised  within  the 


176 

bounds  of  the  1  wo  states  have  been  created  out  of  it.  It  is 
hardly  necessary  to  apply  this  remark  specifically  to  the  Flo- 
ridas:  they  are,  obviously,  in  a  similar  predicament. 

The  abolition  of  slavery  in  her  territories,  has  not  been  at 
tempted  by  the  Federal  Government.  But  highly  important  re 
gulations  have  been  made  by  Congress,  on  a  point  not  very  re 
motely  allied  to  that  subject.  On  the  7th  of  April  1798,  an  act 
was  passed  by  this  body,  "Authorizing  the  establishment  of 
a  government  in  the  Mississippi  Territory;"  the  seventh  sec 
tion  of  which  provides,  "That  after  the  establishment  of  the 
aforesaid  government,  it  shall  not  be  lawful  for  any  person  or 
persons  to  import  or  bring  into  the  said  Mississippi  Territory, 
from  any  port  or  place  without  the  limits  of  the  United  States, 
or  to  cause  or  procure  to  be  so  imported,  &e.  or  knowingly  to 
aid  or  assist  in  so  importing,  &c.  any  slave  or  slaves,  and  that 
every  person  so  offending,  &c.  shall  forfeit,  &c.  for  each  and 
every  slave  so  imported,  &c.  the  sum  of  three  hundred  dollars, 
&c.  and  that  every  slave  so  imported,  fyc.  shall  thereupon  be 
come  entitled  to  and  receive  his  or  her  freedom.  See  acts  of 
the  2nd  session  of  the  5th  Congress,  chap.  45.  This  section 
is  incorporated  without  the  least  variation,  except  as  to  the 
name  of  the  territory,  into  the  act  of  Congress  passed  March 
26,  1804,  entitled,  "An  act  erecting  Louisiana  into  two  terri 
tories,  and  providing  for  the  temporary  government  thereof," 
with  supplementary  regulations,  prohibiting,  in  the  first  place, 
under  an  equal  penalty,  the  introduction  into  Louisiana  Terri 
tory,  "from  any  port  or  place  within  the  limits  of  the  United 
States,  &c.  any  slave  or  slaves  which  had  been  imported  since 
the  first  of  May,  1798,  into  any  port  or  place  within  the  limits 
of  the  United  States,  or  which  should  be  imported  thereafter 
from  any  port  or  place  without  the  limits  of  the  United  States," 
and  concluding  in  this  manner:  "And  no  slave  or  slaves  shall 
directly  or  indirectly  be  introduced  into  said  territory,  except 
by  a  citizen  of  the  United  States  removing  into  said  territory 
for  actual  settlement,  and  being  at  the  time  of  such  removal 
bond  fide  owner  of  such  slave  or  slaves,  and  every  slave  import 
ed  or  brought  into  the  said  territory,  contrary  to  the  provisions 
of  this  act,  shall,  thereupon,  be  entitled  to  and  receive  his  or  her 


177 

freedom."  *ftcts  of  the  1st  session  of  the  8th  Congress,  chap. 
33,  §  10. 

This  act  does  honour  to  the  illustrious  body  from  which  it 
proceeded.  In  practice,  however,  its  benefits  were  of  much 
less  value  than  one,  not  fully  conversant  with  the  mode  in  which 
the  DOMESTIC  slave  trade  is  prosecuted,  would  be  led  to  infer. 
A  prohibition  on  this  subject,  to  be  effectual,  should  be  ABSOLUTE 
AND  WITHOUT  ANY  EXCEPTION.  Jlctual  settlers  and  bona  fide 
owners  may  protect  this  traffic  to  an  extent  adequate  to  the  de 
mand,  without  incurring  a  risk  at  all  commensurate  with  the 
probable  gain. 

But  the  act  is  of  great  moment,  as  a  precedent  to  Congress, 
in  regard  to  the  Missouri,  the  A  rkansas,  and  Florida  Territo 
ries.  The  defects  which  have  been  suggested,  may  be  easily 
supplied.  Let  the  introduction  of  slaves  into  these  territories, 
be,  without  delay,  WHOLLY  FORBIDDEN.  Humanity  and  religion, 
the  character  of  our  country — the  true  interests  as  well  of  the 
slave-holding,  as  of  the  non-slave-holding  states,  demand  this  to 
be  done. 


23 


178 

NOTE  TO  PAGES  ill— U>. 

The  form  in  which  it  was  found  convenient  to  print  the  table 
inserted  on  the  above  pages,  prevented  the  following  note  from 
being  added  in  its  proper  place. 

In  forming  this  table,  a  difficulty  has  been  experienced,  oi 
which  the  reader  should  be  apprised.  The  Revised  Code  of 
Mississippi  was  prepared  chiefly  in  182 1  and  1822,  by  Gover 
nor  Poindexter,  under  the  authority  of  an  appointment  for  this 
purpose,  by  the  legislature.  The  excellence  of  its  execution, 
evinces  that  much  time  and  study  were  bestowed  upon  it.  I  am, 
nevertheless,  not  able  to  learn  to  my  entire  satisfaction,  either 
from  the  code  or  from  the  constitution  of  the  state,  whether  or 
not,  the  common  law  or  any  part  of  it,  is  recognized  there.  It 
is  declared  in  the  constitution,  that,  "  all  laws  and  parts  of 
laws  now  in  force  in  the  Mississippi  territory,  and  not  repug 
nant  to  the  provisions  of  this  constitution,  shall  continue  and  re 
main  in  force  as  the  laws  of  this  state,  until  they  expire  by  their 
o-ivn  limitation,  or  shall  be  altered  or  repealed  by  the  legisla 
ture  thereof."  The  expressions  "parts  of  laws  "  and,  " expir 
ing  by  their  own  limitation,"  seem  to  refer  exclusively  to 
statutes  and  not  to  the  common  law. — The  Revised  Code,  is  a 
collection  of  public  statutes,  and  is  so  expressly  denominated. 
It  contains  no  statute  which  adopts  the  common  law  or  any  por 
tion  of  it.  I  incline,  therefore,  to  the  opinion,  that  it  is  not  in 
force  there.  Feeling,  however,  some  hesitancy,  I  have  not 
ventured  to  speak  peremptorily  on  this  point,  but  have  stated  in 
the  table,  in  many  instances,  under  the  head  of  "punishment  of 
white  persons,"  "not  provided  for  by  statute;"  which  implies, 
according  to  the  view  which  I  have  taken,  that  white  persons 
are  not  at  all  punishable  for  any  of  these  offences.  Some,  in 
deed,  are  not  offences  by  the  common  law. — The  same  remark, 
"not  provided  for  by  statute,"  might  with  propriety  have  been 
noted  in  reference  to  the  punishment  of  white  persons,  for  of 
fences,  Nos.  20,  21,  22,  23,  25,  26,  and  27,  instead  of  that 
which  I  have  given,  i.  e.  "a  fine  not  exceeding  300  dollars, 
and  may  at  the  discretion  of  the  court,  receive  3.9  lashes."  For 
this  is  the  punishment  assigned  for  a  crime  somewhat  different, 
namely,  misprisionor  concealment  of  the  felonies  mentioned. 


CONTENTS. 


CHAPTER  I. 

Of  the  persons  who  may  beheld  as  slaves,  and  upon  what  authority  they 
are  so  held, 9 

CHAPTER  II. 

Of  the  incidents  of  slavery — the  relation  of  master  and  slave,        -         -21 

PROP,  i.  The  master  may  determine  the  kind,  and  degree,  and  time  of  la 
bour,  to  which  the  slave  shall  be  subjected,  -  -  -  26 

PROP.  ir.  The  master  may  supply  the  slave  with  such  food  and  clothing- 
only,  both  as  to  quantity  and  quality,  as  he  may  think  proper, 
or  find  convenient, 30 

PROP.  in.  The  master  may,  at  his  discretion,  inflict  any  punishment  upon 

the  person  of  his  slave, 35 

PROP,  iv.  All  the  power  of  the  master  oveim  his  slave  may  be  exercised 
not  by  himself  only  in  person,  but  by  any  one  whom  he  may 
depute  as  his  agent, 44 

PROP.  v.  Slaves  have  no  legal  rights  of  property  in  things,  real  or  per 
sonal;  but  whatever  they  may  acquire  belongs,  in  point  of 
law,  to  their  masters, 45 

PROP.  vi.  The  slave  being-  a  personal  chattel,  is  at  all  times  liable  to  be 
sold  absolutely,  or  mortgaged,  or  leased,  at  the  will  of  his 
master, 50 

PROP.  vn.  He  may  also  be  sold  by  process  of  law  for  the  satisfaction  of 
the  debts  of  a  living,  or  the  debts  and  bequests  of  a  deceas 
ed  master,  at  the  suit  of  creditors  or  legatees,  -  -  -  51 

PROP.  vin.  A  slave  cannot  be  a  party  before  a  judicial  tribunal,  in  any 
species  of  action,  against  his  master,  no  matter  how  atroci 
ous  may  have  been  the  injury  received  from  him,  -  -57 

PROP.  ix.  Slaves  cannot  redeem  themselves,  nor  obtain  a  change  of  mas 
ters,  though  cruel  treatment  may  have  rendered  such 
change  necessary  for  their  personal  safety,  .  57 

PROP.  x.  Slaves  being  objects  of  properly,  if  injured  by  third  persons, 
their  owners  may  bring  suit,  and  recover  damages,  for  the 
injury,  ....  ....  59 

PROP.  xi.    Slaves  can  make  no  contract,  -    61 

PROP.  xii.   Slavery  is  hereditary  and  perpetual,  •    62 


180 

CHAPTER  III. 

Of  the  condition  of  the  slave  considered  as  a  member  of  civil  society,        -    65 
SECT,  i.     A  slave  cannot  be  a  witness  against  a  white  person,  either  in  a 

civil  or  criminal  cause,  •    65 

SECT.  ir.    He  cannot  be  a  party  to  a  civil  suit,         -  -   ,  -    76 

SECT.  in.  The  benefits  of  education  are  withheld  from  the  slave,  '  - 
SECT.  iv.  The  means  for  moral  and  religious  instruction  are  not  granted  to 
the  slave;  on  the  contrary,  the  efforts  of  the  humane  and 
charitable  to  supply  these  wants  are  discountenanced  by  law,    90 
SECT.  v.     Submission  is  required  of  the  slave,  not  to  the  will  of  his  mas 
ter  only,  but  to  that  of  all  other  white  persons,     -        -        -    96 
SECT.  vi.    The  penal  codes  of  the  slave-holding  states  bear  much  more 

severely  upon  slaves  than  upon  white  persons,     -        -      •'  -    1 
SECT,  vii.  Slaves  are  prosecuted  and  tried  upon  criminal  accusations  in  a 

manner  inconsistent  with  the  rights  of  humanity,  -  119 

CHAPTER  IV. 

On  the  dissolution  of  slavery, 

SBCT.  i.    Of  the  laws  for  the  abolition  of  slavery, 

SECT.  ii.  On  the  laws  regulating  the  emancipation  of  slaves,    •  -  145 

APPENDIX. 
Of  the  laws  of  the  United  States  relating  to  slavery, 

CHAPTER  I. 
On  the  apportionment  of  representatives  to  congress,  &c. 

CHAPTER  II. 
On  the  ninth  section  of  Article  II.  of  the  constitution  of  the  United  States,  158 

CHAPTER  III. 

Of  the  act  of  congress  relative  to  fugitive  slaves, 
CHAPTER  IV. 

Of  the  jurisdiction  of  the  federal  government  over  the  territories  not  yet 

formed  intestates,    - 
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